Federal Register, Volume 81 Issue 108 (Monday, June 6, 2016)

[Federal Register Volume 81, Number 108 (Monday, June 6, 2016)]
[Rules and Regulations]
[Pages 36388-36419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13173]

[[Page 36387]]

Vol. 81

Monday,

No. 108

June 6, 2016

Part II

Department of the Interior

-----------------------------------------------------------------------

Fish and Wildlife Service

-----------------------------------------------------------------------

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Revision of the Section
4(d) Rule for the African Elephant (Loxodonta africana); Final Rule

Federal Register / Vol. 81 , No. 108 / Monday, June 6, 2016 / Rules
and Regulations

[[Page 36388]]

-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-IA-2013-0091; 96300-1671-0000-R4]
RIN 1018-AX84

Endangered and Threatened Wildlife and Plants; Revision of the
Section 4(d) Rule for the African Elephant (Loxodonta africana)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising
the rule for the African elephant promulgated under section 4(d) of the
Endangered Species Act of 1973, as amended (ESA), to increase
protection for African elephants in response to the alarming rise in
poaching to fuel the growing illegal trade in ivory. The African
elephant (Loxodonta africana) was listed as threatened under the ESA
effective June 11, 1978, and at the same time a rule was promulgated
under section 4(d) of the ESA (a ``4(d) rule'') to regulate import and
use of specimens of the species in the United States. This final rule
updates the current 4(d) rule with measures that are appropriate for
the current conservation needs of the species. We adopted measures that
are necessary and advisable to provide for the conservation of the
African elephant as well as appropriate prohibitions from section
9(a)(1) of the ESA.

DATES: This rule is effective July 6, 2016.

FOR FURTHER INFORMATION CONTACT: Craig Hoover, Chief, Division of
Management Authority; U.S. Fish and Wildlife Service; 5275 Leesburg
Pike, MS: IA; Falls Church, VA 22041 (telephone, (703) 358-2093).

SUPPLEMENTARY INFORMATION:

Executive Summary

Why We Need To Publish a Final Rule

When a species is listed as threatened, section 4(d) of the ESA
gives discretion to the Secretary of the Interior to issue regulations
that he or she ``deems necessary and advisable to provide for the
conservation of such species.'' In response to an unprecedented
increase in poaching of elephants across Africa and the escalation of
the illegal trade in ivory, we reevaluated the provisions of the
existing ESA 4(d) rule for the African elephant, and, on July 29, 2015,
we published a proposed rule to revise the 4(d) rule (80 FR 45154). We
are revising the 4(d) rule by adopting measures that are necessary and
advisable for the current conservation needs of the species, based on
our evaluation of the current threats to the African elephant and the
comments received from the public. The poaching crisis is driven by
demand for elephant ivory. This final rule will allow us to more
strictly regulate trade in African elephant ivory and help to ensure
that the U.S. ivory market is not contributing to the poaching of
elephants in Africa. This action is consistent with recommendations
adopted by the Parties to the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES or the Convention) in
March 2013 to help curb the illegal killing of elephants and illegal
trade in ivory, issuance of Executive Order 13648 on Combating Wildlife
Trafficking in July 2013, and the stated priorities in the National
Strategy for Combating Wildlife Trafficking, issued by President Obama
in February 2014.

What is the effect of this final rule?

We are revising the 4(d) rule for the African elephant to increase
protection and benefit the conservation of African elephants by more
strictly controlling U.S. trade in ivory, without unnecessarily
restricting activities that have no conservation effect or are strictly
regulated under other law. The final rule prohibits import and export
of African elephant ivory with limited exceptions for: Musical
instruments, items that are part of a traveling exhibition, and items
that are part of a household move or inheritance when specific criteria
are met; and ivory for law enforcement or genuine scientific purposes.
With regard to import, these exceptions remain prohibited under the
African Elephant Conservation Act (AfECA) import moratorium (54 FR
24758, June 9, 1989). However, under Director's Order 210, as amended
on May 15, 2014, as a matter of law enforcement discretion, the Service
will not enforce the AfECA moratorium with respect to these limited
exceptions. Antiques (as defined under section 10(h) of the ESA) are
not subject to the provisions of this rule. Antiques containing or
consisting of ivory may, therefore, be imported into or exported from
the United States without a threatened species permit issued under
Sec. 17.32, provided the requirements of 50 CFR parts 13, 14, and 23
have been met. However, import of most African elephant ivory,
including antique ivory, remains prohibited under the AfECA import
moratorium. This final rule allows for import of sport-hunted trophies
but limits the number of sport-hunted African elephant trophies
imported into the United States to two per hunter per year. The
prohibition on export of raw ivory in the current 4(d) rule is
maintained in the final rule. Interstate and foreign commerce in
African elephant ivory is prohibited by the final rule except for items
that qualify as ESA antiques and certain manufactured or handcrafted
items that contain a small (de minimis) amount of ivory and meet
specific criteria.
The final rule prohibits take of live African elephants in the
United States, which will help to ensure that elephants held in
captivity receive an appropriate standard of care. As stated in the
proposed rule (80 FR 45154, July 29, 2015), while the taking of live
African elephants held in captivity within the United States or being
transported is not a threat to the species, including a prohibition
against take, even for species that are not native to the United
States, is a standard protection for threatened species and ensures an
adequate level of care for wildlife held in captivity. (This
prohibition is the same as the prohibition on take of Asian elephants,
which has been in place since 1976 when the Asian elephant was listed
under the ESA.) Trade in live African elephants and African elephant
parts and products other than ivory is allowed under the final rule
provided the requirements in 50 CFR parts 13, 14, and 23 have been met.

The Basis for Our Action

The Service reevaluated U.S. domestic controls, given the current
poaching crisis in Africa and the associated increase in illegal trade
in ivory, recent CITES recommendations, and evidence that substantial
quantities of illegal ivory are making their way into U.S. markets. We
determined that it is appropriate to take certain regulatory actions,
including revision of the 4(d) rule as necessary and advisable for the
conservation of the species and to include certain prohibitions from
section 9(a)(1) of the ESA, to more strictly regulate U.S. trade in
ivory. The final rule will regulate import, export, and commercial use
of African elephant ivory and sport-hunted trophies and appropriately
protect live elephants within the United States, while including
certain limited exceptions for items and activities that we do not
believe, based on all available evidence, are contributing to the
poaching of elephants in Africa, including for certain manufactured or
handcrafted items containing ivory that meet specific criteria. The
final rule will

[[Page 36389]]

facilitate enforcement efforts within the United States and improve
regulation of both domestic and foreign trade in elephant ivory by U.S.
citizens. Improved domestic controls will make it more difficult to
launder illegal elephant ivory through U.S. markets, which will
contribute to a reduction in poaching of African elephants.
This final rule is consistent with Executive Order 13648 on
Combating Wildlife Trafficking signed by President Obama on July 1,
2013, to ``address the significant effects of wildlife trafficking on
the national interests of the United States.'' The Executive Order
calls on executive departments and agencies to take all appropriate
actions within their authority to ``enhance domestic efforts to combat
wildlife trafficking, to assist foreign nations in building capacity to
combat wildlife trafficking, and to assist in combating transnational
organized crime.'' Increased control of the U.S. market for elephant
ivory is also among the administrative actions called for in the
National Strategy for Combating Wildlife Trafficking, issued by
President Obama on February 11, 2014. Director's Order No. 210, issued
by the Director of the U.S. Fish and Wildlife Service, established
policy and procedures for the Service to follow in implementing the
National Strategy with regard to trade in African elephant ivory and
parts and products of other ESA-listed species.

Background

In the United States, the African elephant is primarily protected
and managed under the ESA (16 U.S.C. 1531 et seq.); CITES (27 U.S.T.
1087), as implemented in the United States through the ESA; and the
AfECA (16 U.S.C. 4201 et seq.). The ESA designates responsibility for
CITES implementation to the Secretary of the Interior, acting through
the U.S. Fish and Wildlife Service.
Endangered Species Act. Under the ESA, species may be listed either
as ``threatened'' or as ``endangered.'' When a species is listed as
endangered under the ESA, certain actions are prohibited under section
9 (16 U.S.C. 1538), as specified at 50 CFR 17.21. These include
prohibitions on take within the United States, within the territorial
seas of the United States, or upon the high seas; import; export; sale
and offer for sale in interstate or foreign commerce; and delivery,
receipt, carrying, transport, or shipment in interstate or foreign
commerce in the course of a commercial activity.
The ESA does not specify particular prohibitions and exceptions to
those prohibitions for threatened species. Instead, under section 4(d)
of the ESA, the Secretary of the Interior is given the discretion to
issue such regulations as deemed necessary and advisable to provide for
the conservation of the species. The Secretary also has the discretion
to prohibit by regulation with respect to any threatened species any
act prohibited under section 9(a)(1) of the ESA for endangered species.
Exercising this discretion under section 4(d), the Service has
developed general prohibitions (50 CFR 17.31) and established a
permitting process for specified exceptions to those prohibitions (50
CFR 17.32) that apply to most threatened species. Permits issued under
50 CFR 17.32 must be for ``Scientific purposes, or the enhancement of
propagation or survival, or economic hardship, or zoological
exhibition, or educational purposes, or incidental taking, or special
purposes consistent with the purposes of the [ESA].''
Under section 4(d) of the ESA, the Service may also develop
specific prohibitions and exceptions tailored to the particular
conservation needs of a threatened species. In such cases, the Service
issues a 4(d) rule that may include some of the prohibitions and
authorizations set out at 50 CFR 17.31 and 17.32, but that also may be
more or less restrictive than the general provisions at 50 CFR 17.31
and 17.32.
Convention on International Trade in Endangered Species of Wild
Fauna and Flora. CITES entered into force in 1975, and currently has
182 Parties (countries or regional economic integration organizations
that have ratified the Convention), including the United States. The
aim of CITES is to regulate international trade in listed animal and
plant species, including their parts and products, to ensure the trade
is legal and does not threaten the survival of species. CITES regulates
both commercial and noncommercial international trade through a system
of permits and certificates that must be presented when leaving and
entering a country with CITES specimens. Species are listed in one of
three appendices, which provide different levels of protection. In some
circumstances, different populations of a species are listed at
different levels. Appendix I includes species that are threatened with
extinction and are or may be affected by trade. The Convention states
that Appendix-I species must be subject to ``particularly strict
regulation'' and trade in specimens of these species should only be
authorized ``in exceptional circumstances.'' Appendix II includes
species that are not necessarily threatened with extinction now, but
may become so if international trade is not regulated. Appendix III
includes species that a range country has identified as being subject
to regulation within its jurisdiction and as needing cooperation of
other Parties in the control of international trade.
Import and export of CITES species is prohibited unless accompanied
by any required CITES documents. Documentation requirements vary
depending on the appendix in which the species or population is listed
and other factors. CITES documents cannot be issued until specific
biological and legal findings have been made. CITES does not regulate
take or domestic trade of listed species. It contributes to the
conservation of listed species by regulating international trade and,
in order to make the findings necessary for issuance of CITES permits,
encouraging assessment and analysis of the population status of species
in trade and the effects of international trade on wild populations.
African Elephant Conservation Act. The AfECA was enacted in 1988 to
``perpetuate healthy populations of African elephants'' by regulating
the import and export of certain African elephant ivory to and from the
United States. Building from and supporting existing programs under
CITES, the AfECA called on the Service to establish moratoria on the
import of raw and worked ivory from both African elephant range
countries and intermediary countries (those that export ivory that does
not originate in that country) that failed to meet certain statutory
criteria. The statute also states that it does not provide authority
for the Service to establish a moratorium that prohibits the import of
sport-hunted trophies that meet certain standards.
In addition to authorizing establishment of the moratoria and
prohibiting any import in violation of the terms of any moratorium, the
AfECA prohibits: The import of raw African elephant ivory from any
country that is not a range country; the import of raw or worked ivory
exported from a range country in violation of that country's laws or
applicable CITES programs; the import of worked ivory, other than
certain personal effects, unless the exporting country has determined
that the ivory was legally acquired; and the export of all raw (but not
worked) African elephant ivory. While the AfECA comprehensively
addresses the import of ivory into the United States, it does not
address other uses of ivory or African elephant specimens other than
ivory and sport-hunted trophies. The AfECA does not regulate the use of
ivory within the United States and,

[[Page 36390]]

other than the prohibition on the export of raw ivory, does not
regulate export of ivory from the United States. The AfECA also does
not regulate the import or export of live African elephants.

Regulatory Background

Ghana first listed the African elephant in CITES Appendix III on
February 26, 1976. Later that year, the CITES Parties agreed to add
African elephants to Appendix II, effective February 4, 1977. In
October 1989, all populations of African elephants were transferred
from CITES Appendix II to Appendix I (effective in January 1990), which
ended much of the legal commercial trade in African elephant ivory.
In 1997, based on proposals submitted by Botswana, Namibia, and
Zimbabwe and the report of a Panel of Experts (which concluded, among
other things, that populations in these countries were stable or
increasing and that poaching pressure was low), the CITES Parties
agreed to transfer the African elephant populations in these three
countries to CITES Appendix II. The Appendix-II listing included an
annotation that allowed noncommercial export of hunting trophies,
export of live animals to appropriate and acceptable destinations,
export of hides from Zimbabwe, and noncommercial export of leather
goods and some ivory carvings from Zimbabwe. It also allowed for a one-
time export of raw ivory to Japan (which took place in 1999), once
certain conditions had been met. All other African elephant specimens
from these three countries were deemed to be specimens of a species
listed in Appendix I and regulated accordingly.
The African elephant population of South Africa was transferred
from CITES Appendix I to Appendix II in 2000, with an annotation that
allowed trade in hunting trophies for noncommercial purposes, trade in
live animals for reintroduction purposes, and trade in hides and
leather goods. At that time, the Panel of Experts reviewing South
Africa's proposal concluded, among other things, that South Africa's
elephant population was increasing, that there were no apparent threats
to the status of the population, and that the country's anti-poaching
measures were ``extremely effective.'' Since then, the CITES Parties
have revised the Appendix-II listing annotation three times. The
current annotation, in place since 2007, covers the Appendix-II
populations of Botswana, Namibia, South Africa, and Zimbabwe and allows
export of: Sport-hunted trophies for noncommercial purposes; live
animals to appropriate and acceptable destinations; hides; hair;
certain ivory carvings from Namibia and Zimbabwe for noncommercial
purposes; and a one-time export of specific quantities of raw ivory,
once certain conditions had been met (this export, to China and Japan,
took place in 2009). As in previous versions of the annotation, all
other African elephant specimens from these four populations are deemed
to be specimens of species included in Appendix I and the trade in them
is regulated accordingly.
The African elephant was listed as threatened under the ESA,
effective June 11, 1978 (43 FR 20499, May 12, 1978). A review of the
status of the species at that time showed that the African elephant was
declining in many parts of its range and that habitat loss, illegal
killing of elephants for their ivory, and inadequacy of existing
regulatory mechanisms were factors contributing to the decline. At the
same time the African elephant was designated as a threatened species,
the Service promulgated a 4(d) rule to regulate import and certain
interstate commerce of the species in the United States (43 FR 20499,
May 12, 1978).
The 1978 4(d) rule for the African elephant stated that the
prohibitions at 50 CFR 17.31 applied to any African elephant, alive or
dead, and to any part, product, or offspring thereof, with certain
exceptions. Specifically, under the 1978 rule, the prohibition at 50
CFR 17.31 against importation did not apply to African elephant
specimens that had originated in the wild in a country that was a Party
to CITES if the specimens had been exported or re-exported in
accordance with Article IV of the Convention, and had remained in
customs control in any country not party to the Convention that they
transited en route to the United States. (At that time, the only
African elephant range States that were Parties to CITES were Botswana,
Ghana, Niger, Nigeria, Senegal, South Africa, and Zaire [now the
Democratic Republic of the Congo].) The 1978 rule allowed for a special
purpose permit to be issued in accordance with the provisions of 50 CFR
17.32 to authorize any activity otherwise prohibited with regard to the
African elephant, upon submission of proof that the specimens were
already in the United States on June 11, 1978, or that the specimens
were imported under the exception described above.
The 4(d) rule has been amended twice in response to changes in the
status of African elephants and the illegal trade in elephant ivory,
and to more closely align U.S. requirements with actions taken by the
CITES Parties. On July 20, 1982, the Service amended the 4(d) rule for
the African elephant (47 FR 31384) to ease restrictions on domestic
activities and to more closely align its requirements with provisions
in CITES Resolution Conf. 3.12, Trade in African elephant ivory,
adopted by the CITES Parties at the third meeting of the Conference of
the Parties (CoP3, 1981). The 1982 rule applied only to import and
export of ivory (and not other elephant specimens) and eliminated the
prohibitions under the ESA against taking, possession of unlawfully
taken specimens, and certain activities for the purpose of engaging in
interstate and foreign commerce, including the sale and offer for sale
in interstate commerce of African elephant specimens. At that time, the
Service concluded that the restrictions on interstate commerce
contained in the 1978 rule were unnecessary and that the most effective
means of utilizing limited resources to control ivory trade was through
enforcement efforts focused on imports.
Following enactment of the AfECA (in October 1988), the Service
established, on December 27, 1988, a moratorium on the import into the
United States of African elephant ivory from countries that were not
parties to CITES (53 FR 52242). On February 24, 1989, the Service
established a second moratorium on all ivory imports into the United
States from Somalia (54 FR 8008). On June 9, 1989, the Service put in
place the current moratorium, which bans the import of ivory other than
sport-hunted trophies from both range and intermediary countries (54 FR
24758).
The 4(d) rule was revised on August 10, 1992 (57 FR 35473),
following establishment of the 1989 moratorium under the AfECA on the
import of African elephant ivory into the United States, and again on
June 26, 2014 (79 FR 30400, May 27, 2014), associated with the update
of U.S. CITES implementing regulations. In the 2014 revision of the
4(d) rule, we removed the CITES marking requirements for African
elephant sport-hunted trophies. At the same time, these marking
requirements were updated and incorporated into our CITES regulations
at 50 CFR 23.74. The purpose of this change was to make clear what is
required under CITES (at 50 CFR part 23) for trade in sport-hunted
trophies and what is required under the ESA (at 50 CFR part 17).
Proposed rule and comments received. On July 29, 2015, we published
a proposed rule (80 FR 45154) to revise the rule for the African
elephant promulgated under section 4(d) of the ESA. We accepted public
comments on the proposed rule for 60 days, until September 28, 2015.

[[Page 36391]]

We received more than 1,349,000 comments in response to the
proposed rule, including eight petitions with more than 1,342,000
signatures (one petition also included drawings by children). All eight
petitions were in strong support of strengthening elephant ivory
regulatory controls. Counting each of the petitions as one substantive
comment, about 500 of the comments received were substantive. We
received comments from individuals, organizations, and one State
natural resource agency, including substantive comments from:
Musicians, musical instrument manufacturers, and music organizations;
antiques dealers (including auction houses) and collectors; museums and
museum groups; hunting groups and knife and gun rights organizations;
scrimshanders and other artisans working with ivory; a State natural
resource agency; conservation/environmental nongovernmental
organizations; organizations dedicated to promoting trade in ivory; and
concerned citizens.
Requests for extension of the comment period. Some commenters
requested that we extend the comment period for the proposed rule
beyond 60 days. Since we signaled our intent to revise the 4(d) rule in
2014, the Service has been transparent about what we expected to
propose. We met with a number of individuals and groups representing a
range of interests, including musicians, orchestras, instrument
manufacturers, antique dealers and collectors, auction houses, museums,
small businesses, and conservation, hunting, and shooting interests. We
also participated in listening sessions on this proposal, hosted by the
Office of Management and Budget. Because of the extensive consultation
and public outreach that had already occurred, we decided not to extend
the 60-day comment period.
General comments. It is clear from the comments we received that
there are strongly held views in the United States on the conservation
of elephants and trade in elephant ivory. Regardless of perspectives
and positions on trade in ivory, there is overwhelming concern for
elephant populations and a belief that the U.S. Government should take
steps to protect elephants in Africa. Many commenters urged us to adopt
strong regulations and to ``shut down'' the ivory trade to protect
elephants; others argued that the U.S. ivory market is not the problem
and that we should focus our efforts on combating poaching and illegal
trade in Africa and Asia. Some commenters provided information in
support of their positions, some offered specific suggestions and
amendments to the proposed regulatory text, and others simply urged us
to ``do the right thing'' to protect elephants. Some commenters
commended the Service and the Obama Administration for taking steps to
more strictly regulate trade in elephant ivory and for showing
leadership in the fight against elephant poaching and wildlife
trafficking; others asserted that the revisions proposed are unduly
burdensome, that we have exceeded our statutory authority, and that
there is no evidence that these restrictions will have any substantial
effect on elephant poaching. In developing this final rule, we
evaluated the comments and information received. We appreciate the
careful consideration given to this proposal by so many groups and
individuals. A summary and analysis of specific comments follows:
Comments on other types of ivory. We received a number of comments
from individuals, including scrimshanders, who were concerned about the
impact of this rule on trade in ivory other than African elephant
ivory, including mammoth ivory. This final rule will regulate only
African elephants and African elephant ivory. Asian elephants and parts
or products from Asian elephants, including ivory, are regulated
separately under the ESA. Ivory from marine species, such as walrus, is
regulated separately under the Marine Mammal Protection Act (16 U.S.C.
1361 et seq.). Ivory from extinct species, such as mammoth, is not
regulated under statutes implemented by the Service. The only type of
ivory regulated under this final rule is African elephant ivory.
Comments on legal possession of ivory. Some commenters seemed to
think that this final rule would make it illegal to own ivory and would
make the ivory that they currently legally own or possess subject to
seizure or forfeiture. This is simply not true. Nothing in this final
rule impacts a person's ability to own or possess legally acquired
African elephant ivory.
Comments on the listing status of the African elephant. A number of
commenters stated their belief that the African elephant should be
reclassified under the ESA from a threatened species to an endangered
species. Some also urged us to recognize savanna and forest elephants
as two different species of African elephant. We consider these
comments to be beyond the scope of this final rule. The Service has
been petitioned to reclassify the African elephant as endangered and to
recognize two species of African elephants and classify them both as
endangered. Review of those petitions, through a process separate from
this rulemaking, is ongoing.
Comments on trade in African elephant parts and products other than
ivory and sport-hunted trophies. Under the final rule, African elephant
parts and products other than ivory and sport-hunted trophies may be
imported into or exported from the United States, and sold or offered
for sale in interstate and foreign commerce, without an ESA threatened
species permit, provided our CITES and general permitting and import/
export requirements in 50 CFR parts 13, 14, and 23 are met. When
establishing regulations for threatened species under the ESA, the
Service has generally adopted restrictions on the import and export of
live as well as dead animals and their parts and products, either
through a 4(d) rule or through the provisions of 50 CFR 17.31. In this
case, we elected not to extend the relevant section 9(a)(1)
prohibitions to these activities involving live elephants and elephant
parts and products other than ivory and sport-hunted trophies, and thus
no separate ESA threatened species permit is required. Requiring
individuals to obtain an ESA threatened species permit in addition to
the required CITES documents prior to import or export of live animals
and parts or products other than ivory and sport-hunted trophies would
add no meaningful protection for the species and would be an
unnecessary overlay of authorization on top of existing documentation
that already ensures that the import or export is legal and is not
detrimental to the species.
(1) Comment: Some commenters objected to the provisions in the
proposed rule for trade in parts and products other than ivory. They
argued for a ban on commercial sale of all elephant items, including
non-ivory parts and products, asserting that allowing any elephant
parts to remain in the market creates confusion.
Response: We disagree. The poaching crisis is driven by demand for
elephant ivory. As we indicated in the preamble to the proposed rule,
there is no information to indicate that commercial use of elephant
parts and products other than ivory has had any effect on the rates or
patterns of illegal killing of elephants and the illegal trade in
ivory. Thus, we determined it is not necessary and advisable to propose
additional restrictions on commercial activities related to African
elephant parts and products other than ivory and sport-hunted trophies.
We will continue to monitor such activities and may reevaluate these
provisions in the future if needed.
Comments on import of ivory into the United States. Under the final
rule, import of African elephant ivory will be

[[Page 36392]]

limited to sport-hunted trophies (no more than two per hunter per
year), ivory for law enforcement or genuine scientific purposes, and
certain worked ivory that meets specific conditions and is contained in
a musical instrument, is part of a traveling exhibition, or is part of
a household move or inheritance.
(2) Comment: Many commenters believe that the provisions in the
proposed rule are not strict enough and that all import of ivory should
be prohibited, including sport-hunted trophies.
Response: We are strictly regulating import of African elephant
ivory. However, there are circumstances under which import of African
elephant ivory into the United States may benefit conservation of
African elephants, including import for law enforcement purposes and
for genuine scientific purposes, or have no conservation effect. We
have elected to establish exceptions for those activities that we do
not believe have an impact on conservation. The final rule allows the
import of ivory for law enforcement and genuine scientific purposes
that would benefit the conservation of elephants, as well as import of
sport-hunted trophies (when the proper determinations have been made)
and import of ivory that meets specific conditions and is contained in
a musical instrument, is part of a museum or other exhibition, or is
part of a household move or inheritance. This rule allows us to
strictly limit import of ivory in the vast majority of scenarios that
may be contributing to the illegal killing of elephants and the illegal
trade in ivory, while allowing import in only certain narrow
circumstances or purposes that have no conservation effect or that may
benefit conservation. These exceptions remain prohibited under the
AfECA import moratorium. However, under Director's Order 210, as
amended on May 15, 2014, as a matter of law enforcement discretion, the
Service will not enforce the AfECA moratorium with respect to these
limited exceptions. (For further discussion on sport-hunted trophies,
see Comments on import of sport-hunted trophies, below.)
(3) Comment: Commenters stated their support of the Service's
proposal to ban the import of antique ivory under its AfECA authority,
noting the import of these items is already banned pursuant to the
AfECA. The Service proposes to allow noncommercial import of certain
items, including law enforcement and scientific items, musical
instruments, items as part of a household move or inheritance, and
exhibition items, where it can be demonstrated that the ivory was
removed from the wild prior to 1976. Technically, the import of these
items is already banned pursuant to the AfECA. Understanding the
Service's desire to make narrow exceptions, particularly for scientific
and law enforcement purposes, if these import exemptions are maintained
in the final rule, the Service should also maintain all other proposed
limitations on imports (including the ban on post-1989 antique imports
under AfECA and the ban on sale of antiques imported before 1982) ``to
constrain import and sale and much as possible.''
Response: We wish to clarify that we are not invoking authority
under AfECA to ban the import of antique ivory. Rather, as commenters
note, this activity is already banned pursuant to AfECA. The AfECA
moratorium on import of ivory other than sport-hunted trophies remains
in place. Thus, noncommercial import of certain items, including law
enforcement and scientific items, musical instruments, items as part of
a household move or inheritance, and exhibition items, where it can be
demonstrated for each such item that the ivory was removed from the
wild prior to 1976, remains prohibited under the AfECA import
moratorium. However, under Director's Order 210, as amended on May 15,
2014, as a matter of law enforcement discretion, the Service will not
enforce the AfECA moratorium with respect to these limited exceptions.
Additionally, we have clarified in Sec. 17.40(e)(9) that ESA
antiques are exempt from the provisions of this 4(d) rule. In that same
paragraph, we have also pointed to the provisions and prohibitions of
the AfECA, which apply regardless of the age of the item. So, although
we cannot and have not in this 4(d) rule prohibited import of African
elephant ivory that qualifies as an antique under the ESA, the import
of antique ivory is prohibited under the AfECA moratorium as
established in our notice issued on June 9, 1989 (54 FR 24758). With
regard to sale of antique ivory within the United States, Appendix 1 to
Director's Order 210 clarifies how the Service implements the ESA
antiques exception. Appendix 1 reminds the reader that the ESA allows
the import and other activities without an ESA permit of an item that:
(a) Is not less than 100 years of age; (b) is composed in whole or in
part of any endangered species or threatened species listed under
section 1533 of the Act; (c) has not been repaired or modified with any
part of any such species on or after December 28, 1973; and (d) is
entered at a port designated for the import of ESA antiques. The
Appendix further clarifies that the Service will not take enforcement
action against items that meet the first three elements (a, b, and c)
above and were imported prior to September 22, 1982 (when the ESA
antique ports were designated) or were created in the United States and
never imported. Appendix 1 also reminds the reader that anyone claiming
the benefit of an exemption from ESA prohibitions has the burden of
proving that the exemption is applicable.
(4) Comment: Import of antiques should be allowed. The Service has
exceeded its statutory authority by banning all ivory imports. Congress
never intended to prevent legitimate antiques from entering or exiting
the country, which is why it established an antique exception as part
of the 1978 amendments to the ESA.
Response: See the response to (3) above.
(5) Comment: Import of ivory by U.S. museums should be allowed.
Response: The final rule allows the import by museums of African
elephant ivory as part of a traveling exhibition when certain
requirements are met (See Sec. 17.40(e)(5)(ii).). This activity
remains prohibited under the AfECA import moratorium. However, under
Director's Order 210, as amended on May 15, 2014, as a matter of law
enforcement discretion, the Service will not enforce the AfECA
moratorium where the criteria contained in Director's Order 210 are
met. See also Comments on treatment of museums, below.
Comments on import of sport-hunted trophies. Although some who
commented on the provisions for import of sport-hunted trophies were
opposed to the proposed limit on the number that can be imported by a
hunter in a given year and the requirement for an ESA import permit for
trophies from Appendix-II populations, most who commented on this issue
expressed strong opposition to allowing import into the United States
of any African elephant sport-hunted trophies.
(6) Comment: Many commenters stated that, while limiting import of
sport-hunted African elephant trophies to two per hunter per year is an
improvement over the current situation, import of sport-hunted trophies
should be eliminated entirely. Others asserted that sport hunting is
barbaric and that the time has come to eliminate the taking of African
elephants by Americans for sport. Some commenters argued that we need
to provide further explanation for our proposal to allow a hunter to
import two African elephant trophies per year and that one trophy would
and should suffice. Some

[[Page 36393]]

asserted that allowing import of two sport-hunted African elephant
trophies per hunter per year is unsustainable for a species on the
brink of extinction.
Response: The ESA does not prohibit U.S. hunters from traveling to
other countries and taking threatened species (although authorization
may be required under the ESA to import the sport-hunted trophy into
the United States). AfECA specifically allows for import of sport-
hunted trophies of elephants legally taken in a country that has
submitted an ivory quota, and CITES provides guidance (in Resolution
Conf. 10.10 (Rev. CoP16), Trade in elephant specimens) for trade in
sport-hunted African elephant trophies, including on the establishment
by range countries of an annual export quota, as part of the management
of the population. Well-regulated trophy hunting is not a significant
factor in the decline of elephant populations. We continue to believe
that sport hunting, as part of a sound management program, can provide
benefits to the conservation of the species. Before allowing import of
African elephant sport-hunted trophies, we decide whether we can make
the determinations necessary for import under CITES and the ESA by
evaluating information provided by range countries. The Service
determined in April 2014 that, based on the information available to
us, import of sport-hunted trophies from Tanzania and Zimbabwe could
not be allowed because the killing of African elephants for trophies in
those countries does not meet the enhancement standard under the 4(d)
rule. We reached the same determination based on the information
available in 2015. We continue to evaluate requests for import of
sport-hunted trophies carefully under CITES requirements and the ESA
enhancement finding required under this and the previous 4(d) rule.
As we indicated in the preamble to the proposed rule, we are
limiting the number of sport-hunted African elephant trophies that may
be imported into the United States to address a small number of
circumstances in which U.S. hunters have participated in elephant
culling operations and imported, as sport-hunted trophies, a large
number of elephant tusks from animals taken as part of the cull. This
practice has resulted, in some cases, in the import of commercial
quantities of ivory as sport-hunted trophies. Sport hunting is meant to
be a personal, noncommercial activity, and engaging in hunting that
results in acquiring quantities of ivory that exceed what would
reasonably be expected for personal use and enjoyment is inconsistent
with sport hunting as a noncommercial activity. In evaluating an
appropriate limit for personal use, we considered actions taken by the
CITES Parties in recognition of the need to ensure that imports of
certain other hunting trophies are for personal use only. In three
different resolutions, the CITES Parties have agreed to limit annual
imports of hunting trophies of leopards (no more than two), markhor (no
more than one), and black rhinoceros (no more than one). All three of
the resolutions containing these annual import limits (Resolution Conf.
10.14 (Rev. CoP16), Quotas for trade in leopard hunting trophies and
skins for personal use, Resolution Conf. 10.15 (Rev. CoP14),
Establishment of quotas for markhor hunting trophies, and Resolution
Conf. 13.5 (Rev. CoP14), Establishment of export quotas for black
rhinoceros hunting trophies), recommend (among other things) that the
Management Authority of the State of import be satisfied that the
trophies are not to be used for primarily commercial purposes if they
are being imported as personal items that will not be sold in the
country of import and the owner imports no more than one or two
(depending on the species) trophies in any calendar year. Based on past
practice under CITES and the number of elephant trophies imported each
year by the vast majority of U.S. hunters who engage in elephant hunts,
we consider two trophies per hunter per year to be an appropriate upper
limit for the personal use of the hunter and we believe that this limit
addresses our concern. We do not have information to indicate that
allowing the import of two trophies per hunter per year would result in
import of commercial quantities of ivory or would not be appropriate
for personal use. Although some commenters asserted that one trophy
should be enough, they did not provide further information in support
of this position (aside from the general comments that hunting is not
conservation). We anticipate this change will impact fewer than 10
hunters per year. We believe it is necessary to use our authority under
section 4(d) of the ESA to ensure that ivory imported into the United
States as sport-hunted trophies is consistent with sport hunting as a
personal, noncommercial activity and that commercial quantities of
ivory are not imported under the guise of sport hunting.
(7) Comment: Some commenters stated that allowing continued import
of ivory when it is a trophy, instead of ``raw or worked'' ivory, makes
little sense. Some asserted that trophies consisting entirely or
partially of tusks are one of the few legal methods still available for
bringing ivory into the United States and that limiting the number of
trophy imports does not adequately address the problem as there is
nothing to stop multiple hunters from colluding to bring in just as
much ivory by working in concert. One commenter stated that, with the
proposed prohibitions, the value of ivory imported as part of a sport-
hunted trophy will significantly increase, which could lead to an
increase in trophy hunting with the intent to illegally sell the trophy
after import. Setting a zero import quota on African elephant trophies
is the most efficient and effective way to ensure that the system is
not gamed as a cover for the illegal ivory trade.
Response: Please see the response to (6) above. Although the
scenario described by these commenters is possible, we have seen no
evidence that this practice is occurring and consider the risk of such
collusion to be low. In addition, as the commenters correctly state,
selling the trophy ivory after import into the United States would be
illegal under both our CITES regulations (50 CFR 23.55) and this final
rule. We believe the limitations imposed on the import of sport-hunted
trophies in this rule and other laws and regulations are sufficient to
ensure that the commenters' concerns are not realized. As we continue
to monitor the import of sport-hunted trophies, we may reevaluate these
provisions in the future, if necessary.
(8) Comment: The world is a different place than it was when
Congress passed the AfECA, including its exemption for import of sport-
hunted trophies. Political turmoil, war, terrorism, and corruption all
contribute to the ability of buyers to acquire raw ivory in the form of
trophies. While section 4222(e) of AfECA includes an exemption for
legally taken sport-hunted trophies, section 4241 of AfECA expressly
states that the Service's authority is in addition to and does not
affect its legal authority under the ESA. The U.S. Fish and Wildlife
Service has broad authority to regulate trophy imports.
Response: We agree that the Service has broad authority to regulate
import of sport-hunted trophies of listed species, and we do regulate
such imports, including through the provisions in this final rule. We
believe that the restrictions on import of sport-hunted elephant
trophies in this final rule are those that are necessary and advisable
for the conservation of the African elephant.

[[Page 36394]]

(9) Comment: The U.S. Fish and Wildlife Service has banned the sale
of sport-hunted trophy ivory for many years, but it is still available
at auction, indicating that the ban is neither respected nor enforced.
Response: There is not, in fact, currently a ban on the sale of all
sport-hunted African elephant ivory. The current 4(d) rule for the
African elephant prohibits sale or offer for sale of ``any sport-hunted
trophy imported into the United States in violation of permit
conditions'' [emphasis added], and our CITES regulations (at 50 CFR
23.55) prohibit sale of sport-hunted African elephant trophies imported
after January 18, 1990 (when the African elephant was listed in CITES
Appendix I). With this final rule, we are prohibiting any sale of
African elephant trophies in interstate or foreign commerce, with the
exception of those that qualify as ESA antiques (see paragraphs (e)(6)
and (e)(9) of the final rule).
(10) Comment: Appreciate that the Service is finally requiring an
ESA import permit to import any African elephant sport-hunted trophy.
It is imperative that the Service undertake an ESA enhancement analysis
for sport-hunted trophies and that the public notice and comment
requirements in section 10 of the ESA and the requirement that the
Service make application information available to the public be
retained in any 4(d) rule for African elephants.
Response: The commenter is correct that, under this final rule, an
ESA import permit will be required for import of any African elephant
sport-hunted trophy and that we will not issue such a permit unless we
have made a positive enhancement finding. While section 10(c) of the
ESA requires that we publish notice in the Federal Register of each
application involving an exemption or permit made under section 10,
this is not the case for applications involving threatened species,
which are not subject to the section 9 prohibitions and thus, the
notice and comment requirements in section 10(c). Nothing in this final
rule changes those requirements.
(11) Comment: The requirements for ``enhancement findings'' are not
the same as the requirements for CITES ``non-detriment findings.''
Response: We agree. The current 4(d) rule for the African elephant,
at 50 CFR 17.40(e)(3)(iii), allows the import of sport-hunted trophies
provided that, among other things, ``a determination is made that the
killing of the animal whose trophy is intended for import would enhance
survival of the species.'' This provision has been in place since 1992
and will remain in place with this final rule. It requires that we make
an ESA enhancement determination for import of any African elephant
sport-hunted trophy, including those from CITES Appendix-II
populations. Information on factors considered in making an ESA
enhancement finding is found in 50 CFR 17.32(a). In addition to this
ESA finding, for trophies from CITES Appendix-I populations we must
also issue a CITES import permit. Before we can issue a CITES import
permit we must be able to determine that the import is for purposes
that are not detrimental to the survival of the species and that the
specimen is not to be used for primarily commercial purposes.
Information on factors considered in making a CITES non-detriment
finding is contained in 50 CFR 23.61. Information on factors considered
in determining whether a specimen is to be used for primarily
commercial purposes is found in 50 CFR 23.62. The commenter is correct
that the determinations needed for issuance of a CITES import permit
are different from, and in addition to, the ESA enhancement finding.
(12) Comment: The Service has previously asserted that trophy
hunting of imperiled species can have a positive overall impact on
species conservation. There is minimal data showing this to be the
case, particularly for elephants. Proponents of sport hunting as a
conservation tool often cite two interrelated documents as alleged
``proof'' that sport-hunting can be a useful tool for conservation--the
IUCN SSC Guiding Principles on Trophy Hunting as a Tool for Creating
Conservation Incentives and CITES Resolution Conf. 2.11, regarding
trade in hunting trophies of Appendix-I species. The primary theory
behind these documents is that hunting can directly raise funding for
conservation efforts in countries with otherwise limited resources;
however, this possible outcome does not overcome the long-term negative
effect of hunting--allowing legalized killing of these animals
continues to decrease their overall chance of survivability as a
species in the wild.
Response: We continue to believe that well-managed trophy hunting
can benefit conservation and disagree that there is little basis for
this assertion. Trophy hunting can generate funds to be used for
conservation, including for habitat protection, population monitoring,
wildlife management programs, and law enforcement efforts. The IUCN
Guiding Principles on Trophy Hunting as a Tool for Creating
Conservation Incentives (Ver.1.0, August 2012) state that well-managed
trophy hunting can ``assist in furthering conservation objectives by
creating the revenue and economic incentives for the management and
conservation of the target species and its habitat, as well as
supporting local livelihoods'' and, further, that well-managed trophy
hunting is ``often a higher value, lower impact land use than
alternatives such as agriculture or tourism.'' When a trophy hunting
program incorporates the following Guiding Principles, IUCN considers
that trophy hunting can serve as a conservation tool: Biological
sustainability; net conservation benefit; socio-economic-cultural
benefit; adaptive management--planning, monitoring, and reporting; and
accountable and effective governance. We support this approach.
Lindsey et al. (2007), in their paper on the economic and
conservation significance of the trophy hunting industry in sub-Saharan
Africa, state their belief that, from a conservation perspective, ``the
provision of incentives which promote wildlife as a land use is the
single most important contribution of the trophy hunting industry.'' In
addition, they note that trophy hunting generates revenues in areas
where alternatives, such as ecotourism, may not be viable. More
recently, Di Minin et al. (2016) assert that trophy hunting ``strongly
contributes'' to conservation in sub-Saharan Africa, where large areas
currently allocated to use for trophy hunting support important
biodiversity. They also note that, if revenue cannot be generated from
trophy hunting, these natural habitats will be converted to other forms
of land use. While recognizing that the degree to which trophy hunting
contributes to conservation is a subject of debate, Mallon (2013), in
his report on trophy hunting of CITES-listed species in Central Asia,
states that ``well[hyphen]run hunting concessions have an economic
interest in maintaining the resource (i.e., conserving the species) so
will also aim to manage the area to conserve high-quality habitat that
supports high numbers of the hunting species, and also to prevent
unregulated use by others (poaching, overgrazing).'' Naidoo et al.
(2015) describe the complementary benefits of tourism and hunting to
communal conservancies in Namibia.
We are, of course, aware that not all trophy hunting is part of a
well-managed, well-run program, and we evaluate import of sport-hunted
trophies carefully to ensure that all CITES and ESA requirements are
met. As noted previously, the Service currently does not allow import
of sport-hunted

[[Page 36395]]

African elephant trophies from Tanzania and Zimbabwe because, based on
the information available, we were unable to make the necessary
determinations under CITES and the ESA in 2014 and 2015. Under this
final rule, we will continue to require an ESA enhancement finding for
import of all African elephant sport-hunted trophies and will require
issuance of a threatened species permit for all such trophies, which
will allow us to carefully evaluate trophy imports in accordance with
legal standards and the conservation needs of the species.
(13) Comment: Trophy hunting is a very big industry, and trophy
imports are unquestionably commercial. Trophy hunters pay tens of
thousands of dollars for hunting licenses, lodges, guides, etc., yet
trophy hunting continues to be categorized as noncommercial.
Response: We recognize that trophy hunters spend money on licenses,
guides, travel, lodging, etc., and agree that sport hunts are a source
of income for guides, outfitters, governments, and others in many range
countries (and that a portion of the money generated by these hunts is
often directed to elephant conservation efforts). However, the import
of sport-hunted trophies for the personal use of the hunter is, and has
long been, considered a noncommercial activity both under the ESA and
by the CITES Parties. With this final rule, we are prohibiting any sale
of African elephant trophies in interstate or foreign commerce, with
the exception of those that qualify as ESA antiques, which will ensure
that these imports are not commercialized.
(14) Comment: Some commenters were opposed to the restriction on
import of sport-hunted trophies and to the requirement for ESA import
permits for African elephant sport-hunted trophies from Appendix-II
populations. One commenter asserted that those populations were
expressly transferred from Appendix I to Appendix II to reduce import
permitting costs, burden, and delays. The same commenter expressed
particular opposition to limiting the number of trophies that could be
imported from Appendix-I populations, as Appendix-I import permit
conditions state that the ivory may not be sold. Some commenters stated
that we had not indicated that U.S. sport hunters are a source of the
poaching or trafficking problems so there is no reasonable
justification for our assertion that individual permit requirements
will help reduce poaching and trafficking of elephants.
Response: The African elephant populations in Botswana, Namibia,
South Africa, and Zimbabwe were moved from Appendix I to Appendix II
because they met the criteria for downlisting to Appendix II. These
criteria do not include or contemplate reduction of permitting costs or
burdens. The decisions to downlist these populations occurred at a time
(1997 for Botswana, Namibia, and Zimbabwe; 2000 for South Africa) when
the African elephant populations in these countries were increasing and
poaching was generally not a concern. As stated previously, we are
imposing limits on annual imports of sport-hunted trophies to ensure
that U.S. hunters are not importing commercial quantities of ivory, as
has happened in the recent past. We are aware of circumstances under
which U.S. hunters have participated in elephant culling operations and
imported the ivory from those culls as sport-hunted trophies. We
consider this practice to be inconsistent with sport hunting, which is
meant to be a personal, noncommercial activity. While the commenters
are correct that we do not believe that U.S. sport hunters are involved
in poaching and trafficking of ivory, we are concerned about commercial
quantities of ivory imported through sport-hunting contributing to the
problem, particularly in light of our concerns about the status of
African elephant populations and the inadequacies of conservation
management programs in place in many African elephant range countries.
Authorizing import of all sport-hunted trophies through threatened
species enhancement permits will allow us to more carefully evaluate
trophy imports in accordance with legal standards and the conservation
needs of the species.
(15) Comment: The permit requirement will not benefit hunters,
contrary to what the Service has suggested. The ability to import will
become subject to the discretion of U.S. officials responsible for
reviewing the paperwork involved in the permit process, and any minor,
nonsubstantive inaccuracy or error could result in delays, confiscation
of the trophy, bureaucratic and legal obstacles, and penalties.
Response: We disagree. See the response to (14) above. Although we
are changing the process for obtaining authorization for import, we are
not changing the standards for the decision or the enhancement finding.
In addition, under current regulations, the import of elephant sport-
hunted trophies requires the Service to make a determination regarding
whether the killing of the elephant whose trophy is intended for import
would enhance the survival of the species, the trophy must be declared
to the Service at the time of import, and the trophy must be made
available for inspection. Issuance of a permit confirming that an
enhancement determination has been made is unlikely to result in any
fundamental change in how trophies are treated upon import.
(16) Comment: The current enhancement requirement is not lawful. It
is wholly based on a perceived enhancement requirement under CITES
Resolution Conf. 2.11 for Appendix I sport-hunted trophies, not
Appendix II as is proposed.
Response: The requirement that we make a determination regarding
whether the killing of the elephant whose trophy is intended for import
would enhance the survival of the species is based on our ESA
implementing regulations (50 CFR 17.32), and is in addition to CITES
requirements. It is not based on the recommendations in Resolution
Conf. 2.11, which addresses the making of CITES non-detriment findings
for trade in hunting trophies of Appendix-I species. (See the response
to (11) above.)
(17) Comment: Sufficient reason has not been given for overriding
the purpose and intent of section 9(c)(2) of the ESA, which exempts
hunting trophies of threatened Appendix-II species from import permit
requirements, and the provisions of the AfECA confirming specifically
the favored treatment of elephant hunting trophies.
Response: We disagree. Section 9(c)(2) (16 U.S.C. 1538(c)(2)) of
the ESA and our ESA implementing regulations at 50 CFR 17.8 provide a
limited exemption for the import of some threatened species, which can
be used by hunters to import sport-hunted trophies. Import of
threatened species that are also listed under CITES Appendix II is
presumed not to be in violation of the ESA if the import is not made in
the course of a commercial activity, all CITES requirements have been
met, and all general wildlife import requirements under 50 CFR part 14
have been met. This presumption can be rebutted, however, when
information shows that the species' conservation and survival would
benefit from the granting of ESA authorization prior to import.
In 1997 and 2000, when the four populations of African elephants
were transferred from CITES Appendix I to CITES Appendix II, we
retained the requirement for ESA enhancement findings prior to the
import of sport-hunted trophies. We amended the African elephant 4(d)
rule in June of 2014, again maintaining the requirement for an ESA
enhancement finding prior to allowing the import of African

[[Page 36396]]

elephant sport-hunted trophies. Requiring issuance of threatened
species enhancement permits under 50 CFR 17.32 for the import of any
African elephant hunting trophy is a change to the procedure for
issuing ESA authorization but not a change to the requirement that an
enhancement finding be made prior to import into the United States, as
this finding was also required under the previous 4(d) rule.
The overall conservation status of African elephants has
deteriorated in the years following the transfer of the four
populations of African elephants to CITES Appendix II. The Service made
a similar determination regarding the need for import permits for
sport-hunted trophies of Appendix-II argali (Ovis ammon). In the final
rule announcing the listing of the argali under the ESA (57 FR 28014,
June 23, 1992), the Service determined the need for threatened species
permits for import of sport-hunted trophies, noting that the ``history
of excessive exploitation of the argali'' and ``the uncertainty
concerning its management'' rebut the presumption that an export permit
issued by the exporting country is all that is necessary to provide for
the conservation of the argali in those countries. The district court
upheld the Service's determination, finding no provision of the ESA
indicates that ``the Secretary's duty and authority to issue protective
regulations is preempted, circumscribed, or modified by section
9(c)(2).'' Safari Club Int'l v. Babbitt, 1993 U.S. Dist. LEXIS 21795
(W.D. Tex. Aug. 12, 1993).
As stated previously, authorizing import of all sport-hunted
trophies through threatened species enhancement permits will allow us
to more carefully evaluate trophy imports in accordance with legal
standards and the conservation needs of the species. For example, as we
noted in the preamble to the proposed rule, the issuance of threatened
species enhancement permits under 50 CFR 17.32 would mean that the
standards under 50 CFR part 13 would also be in effect, such as the
requirement that an applicant submit complete and accurate information
during the application process and the ability of the Service to deny
permits in situations where the applicant has been assessed a civil or
criminal penalty under certain circumstances, failed to disclose
material information, or made false statements. Therefore, we have
determined that the additional safeguard of requiring the issuance of
threatened species enhancement permits under 50 CFR 17.32 prior to the
import of sport-hunted African elephant trophies is warranted, and we
are consciously supplanting the provisions of section 9(c)(2) of the
ESA that would otherwise apply.
(18) Comment: The proposed rule violates the ESA. The Service
proposes to restrict the number of sport-hunted trophies to two per
hunter per year. In addition, the proposed rule requires issuance of a
threatened species permit for all African elephant sport-hunted
trophies, whereas now such permits are required only for trophies from
CITES Appendix-I populations. The positive impact of sport hunting on
wildlife management and economic development in Africa has been well
documented, and the proposed rule does not detail the negative
consequences the proposed revisions could have on sport hunting in
Africa, nor does it offer evidence of how these negative consequences
may impact conservation of elephants throughout their range. Because of
this failing, the public has not been provided an opportunity to
comment meaningfully, and, if finalized in its current form, this rule
would constitute an arbitrary and capricious abuse of discretion.
Response: We disagree. While we have consistently acknowledged the
positive impact sport hunting can have on wildlife management and
economic development, we also articulated our concerns in the proposed
rule with respect to the potential for commercial quantities of ivory
to be imported as a result of sport hunting and provided opportunity
for public comment. This rule does not limit the opportunity to hunt,
only the number of trophies that an individual could import in a given
year. Based on the small number (fewer than 10) of U.S. hunters who
have imported more than two trophies per year over the last several
years, we do not expect this to be a significant change for the vast
majority of hunters. Range countries that allow sport hunting of
African elephants establish annual quotas for export. Unless otherwise
proscribed, a quota for 50 elephants could be filled by one hunter or
50 hunters. We do not believe, based on the information we have, that
there is a shortage of hunters or that placing limits on the number of
trophies that U.S. hunters can import in a given year would impact the
overall number of elephants hunted. We are placing a limit on the
number of trophies that can be imported to increase control of the U.S.
domestic ivory market and to ensure that we are not allowing the import
of commercial quantities of ivory as sport-hunted trophies. (See also
the response to (12), above.)
Requiring issuance of a threatened species permit for import of all
African elephant sport-hunted trophies (instead of only those from
Appendix-I populations) will help us to more carefully evaluate trophy
imports in accordance with legal standards and the conservation needs
of the species and to ensure a conservation benefit. (See the response
to (17), above.)
Comments on interstate and foreign commerce in ivory: The de
minimis exception. The final rule will prohibit sale and offer for sale
of ivory in interstate and foreign commerce except for antiques and
certain manufactured items that contain a small (de minimis) amount of
ivory and meet specific criteria. We received many comments on this
proposed de minimis exception, including on the seven criteria set
forth in paragraph (e)(3) to qualify for the exception. In the preamble
to the proposed rule, we included a specific request for comment on the
criteria proposed in paragraph (e)(3), particularly the criteria set
forth in subparagraphs (iii) (the ivory is a fixed component or
components of a larger manufactured item and is not in its current form
the primary source of the value of the item) and (v) (the manufactured
item is not made wholly or primarily of ivory), including the impact of
not including these criteria and whether these criteria are clearly
understandable.
Some, including some conservation organizations, expressed their
preference for a complete ban on domestic commerce, but recognized our
rationale for this proposed exception and asserted that the
requirements to qualify should not be weakened in any way. Many others
appreciated a de minimis exception but suggested a variety of changes
to meet their particular needs, e.g., bagpipers and organists believe
the 200-gram weight limit should be increased to cover all types of
bagpipes and keyboard instruments with multiple keyboards; others
believe the weight limit should be different for different types of
objects (furniture, musical instruments, etc.); some urged us to adopt
a volume limit, instead of a weight limit; some suggested that the text
in criterion (iii) be amended to include ivory parts that are
``integral'' to a manufactured item, not just ``fixed components'' of
the item. We also received a request to amend criterion (iii) to
include handcrafted items in addition to manufactured items. Some
commenters urged us to extend the de minimis exception to commercial
import and export.
(19) Comment: It is critical that, in the final rule, this
provision remains truly

[[Page 36397]]

an exception only for items with minimal amounts of ivory. The criteria
required for meeting the de minimis exception are well thought out and
when taken as a whole will ensure that only a narrow category of ivory
product that does not contribute to illegal trade will be permitted.
Strongly discourage the removal or rollback of any of the seven
criteria.
Response: We agree with the commenters.
(20) Comment: The broad de minimis exemption should be removed or
significantly tightened (i.e., limited to musical instruments only).
Response: While we appreciate the concern expressed, we decline to
accept this suggestion. We have given considerable thought to the de
minimis exception and the development of the criteria that must be met
to qualify for the exception. It is our intent only to allow continued
interstate and foreign commercial trade in products that contain a
small amount of old ivory; items that we do not believe are
contributing to elephant poaching or the illegal ivory trade. That
group of products includes certain musical instruments but also
includes, for example, household items such as baskets with ivory trim
and teapots with ivory insulators, knives and guns with ivory grips,
and some canes, walking sticks, and measuring tools with ivory trim or
decoration, etc.
Our law enforcement experience over the last 25 years has shown
that the vast majority of items in the illegal ivory trade are either
raw ivory (tusks and pieces of tusks) or manufactured pieces (mostly
carvings) that are composed entirely or primarily of ivory. In the
preamble to the proposed rule, we described the November 2013 ``ivory
crush'' during which the Service destroyed six tons of seized ivory
that represented over 25 years of law enforcement efforts to control
illegal ivory trade in the United States. The six tons of contraband
ivory that was destroyed did not include any items that would be
covered by this exception. Ivory traffickers are not manufacturing
items with small amounts of pre-Convention ivory or dealing in such
items. Rather, because the incentive to deal in illegal ivory is
economic, the trade focuses on raw ivory and large pieces of carved
ivory from which the highest profits can be made. We also described, in
the preamble to the proposed rule, the case involving a Philadelphia-
based African art dealer, which included the seizure of approximately
one ton of ivory. All of the seized ivory (which was subsequently
destroyed in our 2015 ivory crush in Times Square) was in the form of
whole ivory carvings and did not include any items that would qualify
under the de minimis exception in the final rule. Thus, we believe the
criteria necessary to meet the de minimis exception will ensure that
only a narrow category of ivory product that does not contribute to
illegal trade will be permitted.
(21) Comment: Replace the word ``fixed'' with the phrase ``fixed or
integral'' in criterion (iii) to cover items that have small ivory
pieces that can be easily removed (like nuts or pegs on some wooden
tools or musical instruments). ``Integral'' connotes an item that is
``essential to the completeness'' of a larger structure (Merriam-
Webster online dictionary) and should satisfy the purpose of the
criterion without artificially distinguishing between components based
on how easily they can be detached.
Response: We believe this is a reasonable and useful suggestion and
have revised the final rule accordingly.
(22) Comment: The de minimis exception provides an important avenue
to allow sale and offer for sale of ivory objects in interstate or
foreign commerce that would not contribute to illegal wildlife trade.
However, the requirements as written may not exempt many objects
considered works of art by U.S. art museums. The commenters suggest
adding ``handcrafted'' to ``manufactured'' in the de minimis exception.
Handcrafted would cover works that are unique and made primarily by
hand that might not be considered ``manufactured.''
Response: We would have considered ``handcrafted'' items to fall
under ``manufactured'' items, but we understand the distinction made by
the commenters and have added handcrafted items to the criteria in
paragraphs (e)(3)(iii), (v), and (vii) for clarity.
(23) Comment: Allow handcrafted objects created before February 26,
1976, to meet the de minimis exception, even if the ivory is a major
component, so long as the ivory is not the primary source of value
(e.g., portrait miniatures).
Response: We appreciate that there are some items that meet most,
but not all, of the criteria in the de minimis exception, and that some
of these items may not be among those contributing to the poaching of
elephants and illegal ivory trade. However, it is the criteria as a
whole that we believe will minimize the possibility of the ivory
contributing to either global or U.S. illegal ivory markets or that the
de minimis exception could be exploited as a cover for illegal trade.
We have crafted the de minimis exception to allow continued commercial
trade in items that contain only a small amount of older ivory and that
are not valued primarily because of the ivory they contain. We consider
an item to be made wholly or primarily of ivory if the ivory component
or components account for more than 50 percent of the volume of the
item. Likewise, if more than 50 percent of the value of an item is
attributed to the ivory component or components, we consider the ivory
to be the primary source of the value of that item. Any person claiming
the benefit of this exception has the burden of proving that the
exception is applicable and showing that an item meets all of the
criteria under the exception. Allowing interstate and foreign commerce
of items for which ivory is a major component is contrary to the intent
of the de minimis exception and would complicate implementation and
enforcement of the exception. Therefore, we have not included this
suggestion in the final rule. However, we note that many (possibly
most) portrait miniatures, the example provided by the commenter, would
likely qualify as ESA antiques and, therefore, would not need to meet
the de minimis exception to be sold in interstate or foreign commerce.
(24) Comment: Allow a corresponding exception for import by U.S.
art museums of works of art satisfying the stringent de minimis
criteria.
Response: See Comments on treatment of museums, below.
(25) Comment: The Service should further restrict the date of
import requirement in paragraph (e)(3)(i) so that it is consistent with
the date in paragraph (e)(3)(ii), i.e., February 26, 1976.
Response: The first two criteria paragraph (e)(3) to qualify for
the de minimis exception set limits on when the ivory was either
imported into the United States (if it is located in the United States)
or when it was removed from the wild (if it is located outside the
United States). We have chosen a different date for ivory that has been
imported into the United States than for ivory located outside the
United States to be consistent with our CITES regulations and standard
CITES practices regarding pre-Convention specimens. Criterion (i)
provides that, for items located in the United States, the ivory must
either have been imported prior to January 18, 1990 (the date the
African elephant was listed in CITES Appendix I), or imported under a
CITES pre-Convention certificate (certifying that the ivory was removed

[[Page 36398]]

from the wild prior to the date the African elephant was first listed
under CITES, which is February 26, 1976). This requirement is
consistent with our CITES regulations at 50 CFR 23.55, which provide
that CITES Appendix-I specimens may be used only for noncommercial
purposes after import into the United States unless it can be
demonstrated that they were imported prior to the Appendix-I listing or
they were imported under a CITES pre-Convention certificate, which is
issued to certify that the CITES specimen was taken from the wild prior
to the date that the species was listed under CITES.
Criterion (ii) states that, for items located outside the United
States, the ivory must have been removed from the wild prior to
February 26, 1976. In this situation, our CITES use-after-import
provisions in 50 CFR 23.55 would not apply (since the ivory has not
been imported into the United States). Any African elephant specimen
removed from the wild prior to February 26, 1976, is considered to be
``pre-Convention'' as it was acquired before it was subject to the
provisions of CITES. The concept of pre-Convention CITES specimens and
the process for authorizing international trade of CITES pre-Convention
specimens is familiar to and widely understood by the 182 Parties to
CITES. Therefore, we consider that use of the pre-Convention date as a
qualifying factor for items located outside the United States is
appropriate.
(26) Comment: Some commenters urged us to maintain the language in
paragraph (e)(3) in criterion (v) that ensures that a qualifying item
is not made wholly or primarily of ivory and the language in criterion
(iii) stating that ivory is not the primary source of the value of the
item. They also asserted that the other criteria are all reasonable
elements that, if enforced, would be an improvement on the regulatory
status quo. Some commenters urged us to strengthen and clarify the de
minimis requirements, specifically criterion (v). They expressed their
belief that ``wholly or primarily'' is subject to interpretation and
could be construed to allow the sale of items made of up to 50 percent
ivory. They urged us to consider a more stringent standard and noted
that the State of New York requires antiques to be less than 20 percent
ivory and California requires antiques to be less than 5 percent ivory
and musical instruments to be less than 20 percent ivory to qualify for
legal sale. These commenters encouraged the use of an equally well-
defined numeric standard and low threshold amount of ivory to meet the
requirements of criterion (v) of the de minimis exception. Some
commenters suggested that, for some items, particularly furniture, we
should consider a volume limit, as it allows for large antiques that
use a proportionally small amount of ivory to be legally traded. Other
commenters expressed uncertainty over how the primary source of value
would be determined.
Response: We agree that it is important to maintain all seven of
the criteria for meeting the de minimis exemption and that all of these
criteria taken together ensure that only items containing truly small
quantities of ivory will qualify for the exemption. We disagree with
the assertion that using only a percentage of the total volume or
weight of an item instead of a total allowable weight for the ivory
contained in an item will necessarily result in a more stringent or
more easily enforceable standard. Less than 20 percent, by weight or
volume, of a very large or heavy piece could equal far more than 200
grams of ivory. Because all of the criteria must be met to qualify for
the de minimis exception, both criterion (v) and criterion (vi), the
two criteria that address quantity, must be met. This means that a
qualifying item may not be made wholly or primarily of ivory and the
total weight of the ivory component or components in the item must be
less than 200 grams. We consider an item to be made wholly or primarily
of ivory if the ivory component or components account for more than 50
percent of the volume of the item. Likewise, if more than 50 percent of
the value of an item is attributed to the ivory component or
components, we consider the ivory to be the primary source of the value
of that item. We believe that these criteria taken together
appropriately limit the amount of ivory an item may contain and still
qualify for the de minimis exception. We will provide additional
guidance on the implementation of these criteria via our Web site,
including how we will estimate the weight of the ivory contained in a
manufactured or handcrafted item, prior to the effective date of this
rule. However, as stated above, any person claiming the benefit of this
exception has the burden of proving that the exception is applicable
and showing that an item meets all of the criteria under the exception.
See Comments on documentation requirements (below).
(27) Comment: The 200-gram limit on the amount of ivory contained
in antique objects seems unnecessarily stringent, driven by the weight
of the ivory veneers on piano keys rather than a close review of the
wide spectrum of antique objects that contain ivory. It is unclear how
the Service would attempt to enforce the 200-gram limit (if the ivory
is an integral part of the antique object, how could it be weighed
separately?). If a de minimis limit is adopted, some commenters
proposed that it be done by category of object; while 200 grams may be
appropriate for musical instruments, with respect to other antique
objects, particularly furniture, the Service should consider a volume
limit, such as the 20 percent rule adopted in New York.
Response: To be clear, the proposed de minimis exemption does not
apply to antiques. Items made of ivory or containing ivory that qualify
as ESA antiques may be sold or offered for sale in interstate or
foreign commerce regardless of the quantity of ivory they contain. The
de minimis provision applies to activities in interstate and foreign
commerce involving handcrafted or manufactured items containing small
amounts of pre-Convention ivory or ivory that was imported into the
United States prior to 1990 that does not qualify as antique under the
ESA. The intent of the de minimis provision is only to allow the sale
of certain older items, containing small amounts of ivory, which we do
not believe are contributing to the poaching of elephants in Africa.
The commenters are correct that we chose the 200-gram limit because
we believed it was large enough to accommodate most pianos and other
musical instruments, as well as many other household and utilitarian
items (such as baskets with ivory trim, teapots with ivory insulators,
knives and guns with ivory grips, some canes and walking sticks with
ivory inlay or other decoration, and measuring tools with ivory trim or
decoration), but also because it was small enough to ensure that we
were not allowing commercialization of substantial volumes of ivory.
Because we proposed the 200-gram limit with a particular suite of
existing items in mind, including certain musical instruments, we
already have a good understanding of the types of items that qualify
for the de minimis exception. We will provide additional guidance on
the implementation and enforcement of the 200-gram limit. See also
Comments on documentation requirements (below).
(28) Comment: For the de minimis exemption to function as intended,
it is important that the 4(d) rule apply documentation requirements
that are flexible enough to be realistic and achievable. The Service
has already articulated such requirements in the ``use after import''
rule, and this same standard should be used for items

[[Page 36399]]

subject to the de minimis exemption; specificity can only lead to
confusion.
Response: See Comments on documentation requirements (below).
(29) Comment: The New York State Department of Environmental
Conservation (DEC) commends the U.S. Fish and Wildlife Service for its
efforts to combat illegal wildlife trade and states that it has been
proud to work alongside the Service to eliminate the illegal trade in
wildlife. New York State has recently passed robust legislation banning
the sale of elephant and mammoth ivory and rhinoceros horn, with
limited exceptions for products such as antiques containing only a
small amount of ivory. This legislation significantly curtailed the
amount of elephant ivory that can be legally sold, traded, or
distributed in New York State. The de minimis exemption in the
Service's proposed rule is a significant flaw that would weaken New
York State's ivory prohibitions on interstate sale. Current New York
State law generally prohibits interstate sale of elephant ivory unless
a person can demonstrate that the item is an antique greater than 100
years old and the person secures a permit from DEC to sell the ivory.
The ESA generally preempts a State law that applies to import or
export, or interstate or foreign sale of endangered or threatened
species, where the State law prohibits what is authorized pursuant to
an ESA exemption, permit, or implementing regulation. If the de minimis
exemption is adopted, the State of New York must permit interstate sale
of manufactured items containing de minimis amounts of ivory even if
they are not antiques. The Service should reconsider this exemption.
Response: We agree that the revised 4(d) rule for the African
elephant would likely require that the State of New York allow sale and
offer for sale of ivory in interstate or foreign commerce along with
delivery, receipt, carrying, transport, or shipment in interstate or
foreign commerce without a threatened species permit for manufactured
items containing de minimis amounts of ivory, provided they meet
specific criteria. While the commenters have expressed their concern
that this portion of their rule may be preempted, they have not
attempted to show why allowing interstate commerce of de minimis
amounts of ivory would not adequately curtail the sale of elephant
ivory or why a more restrictive approach may be necessary and advisable
for the species. It is always a goal of the Service to balance the
burden of regulation with conservation. Based on our more than 25 years
of law enforcement efforts and input from the public, this rule strives
to strike that balance. We will, of course, continue to monitor the
situation, and if the balance tips, may revisit the rule as necessary.
Additional comments on interstate and foreign commerce in ivory. As
noted above, the final rule will prohibit sale and offer for sale of
ivory in interstate and foreign commerce except for antiques and
certain manufactured items that contain a small (de minimis) amount of
ivory and meet specific criteria. In addition to the comments on the de
minimis exception, we received comments on other aspects of the
provisions for interstate and foreign commerce.
(30) Comment: Some commenters, including the New York Department of
Environmental Conservation, assert that the Service should require a
permit for the sale, offer for sale, purchase, trade, barter, or
distribution of articles containing African elephant ivory and products
and parts from other endangered and threatened species in interstate or
foreign commerce.
Response: This comment, as it relates to other endangered and
threatened species in interstate or foreign commerce, is beyond the
scope of this rulemaking. However, the Service's goal here, and in its
approach to regulating wildlife trade more broadly, is to balance the
burden of regulation with the impact on conservation. Where our
experience indicates that this activity is not contributing to the
poaching of elephants and the risk of illegal trade is low, we do not
wish to impose unnecessary regulatory burden on the public or
additional workload on the Service, particularly in an area where the
workload is already substantial.
(31) Comment: The U.S. Fish and Wildlife Service should create a
registry and license all ivory dealers as recommended in CITES
Resolution Conf. 10.10 (Rev. CoP16). Section 9(d) of the ESA creates a
mandate for the Service to track the disposition of ivory products once
they enter the United States.
Response: We disagree that section 9(d) of the ESA creates a
mandate for the Service to track the disposition of ivory products once
they enter the United States. Section 9(d) of the ESA requires people
engaged in business as importers or exporters of wildlife, including
any amount of African elephant ivory, to first obtain permission from
the Service. These importers and exporters are also required to keep
records of their imports and exports and any subsequent disposition by
them of the wildlife and to allow the Service to examine those records.
Those provisions remain firmly in place. The Service requires that
anyone engaged in commercial import or export of wildlife obtain an
Import/Export License from our Office of Law Enforcement and provide an
opportunity for us to examine inventories and required records ``at all
reasonable times upon notice by a duly authorized representative.'' We
believe that the prohibitions and exceptions laid out in this rule are
adequate to effectively regulate ivory trade in the United States and
to ensure that the U.S. market for ivory is not contributing to
elephant poaching and illegal ivory trade. A registry and licensing
scheme would be unduly burdensome on both the regulated public and the
Service, with little, if any, added conservation benefit beyond the
restrictions already in place and those added here.
(32) Comment: Some commenters stated that the economic impact of
the proposed rule on American craftsmen and artisans will be
significant. One commenter estimated that there are about seven
individuals in the United States who purchase tusks (from individuals
who imported them prior to 1989) and cut them into a variety of forms,
or ``blanks,'' for U.S. craftsmen to finish. These craftsmen work the
ivory pieces into finished products, including pool cues, knife
handles, and piano keys. He estimated that there are about 15
individuals making pool cues with ivory ferrules and that there are a
total of about 300 people in the United States creating finished
products using ivory. The commenter stated that under the proposed rule
all of these people would lose their livelihoods. We also received
comments from craftsmen who restore ivory pieces (see (48), below).
Response: We agree that this rule will impact craftsmen working
with ivory in the United States. We note, however, that the final rule
does not impact intrastate (within a State) commerce so those buying
and selling within the State in which they reside will be able to
continue to do so (where such activity is allowed under State law). In
addition, we note that these craftsmen can make use of alternative
materials, including mammoth ivory or deer antlers, for example. Martin
and Stiles noted in their 2008 report that the exact number of ivory
craftsmen in the United States is unknown but they estimated that there
were 120 to 200 craftsmen at that time, with the number decreasing over
time. The authors also noted that most craftsmen work part-time with
ivory and use other materials as well. The impact on individual
craftsmen will depend on the diversity of materials they use (wood,
bone, mammoth tusks,

[[Page 36400]]

etc.) and may range from minimal revenue decrease to closure.
(33) Comment: The U.S. Fish and Wildlife Service definition of
``commercial activity'' is substantially narrower than the statutory
definition and is, therefore, unlawful and should be amended. Section 3
of the ESA broadly defines ``commercial activity'' to mean ``all
activities of industry or trade, including, but not limited to, the
buying or selling of commodities.'' The Service's regulations at 50 CFR
17.3 further define ``industry or trade'' to mean only ``the actual or
intended transfer of wildlife from one person to another person in the
pursuit of gain or profit.'' The Service's definition essentially
restricts covered ``commercial activities'' to the buying and selling
of items. This definition contravenes the statutory definition, which
covers both buying and selling items, as well as other commercial
activities. The Service should rethink and broaden its regulatory
definition [of commercial activity] and its application in the 4(d)
rule.
Response: The regulatory definition of ``industry or trade'' with
regard to commercial activity has been in place for many years and was
promulgated through rulemaking conducted in accordance with the
Administrative Procedure Act (APA), where the public received
opportunity for notice and comment. As we know the commenter is aware,
this definition has broader application than this 4(d) rule. We do not
consider it appropriate to amend the definition for this specific
rulemaking. In addition, as explained in the preamble to the proposed
rule, we believe that taking an article across State lines for repair,
for example, rightfully falls outside what is considered ``commercial
activity.'' We may revisit this issue in the future if the existing
definition appears to allow activities that may be contrary to the
spirit or plain language of the ESA.
Comments on documentation requirements. We received a number of
comments requesting that we provide clearly understandable guidance on
how to determine whether an item qualifies for the antiques or de
minimis exemptions and what type of documentation can be used to
demonstrate that an item qualifies for one of these exemptions. Many
musicians asked that we clarify the documentation needed to show the
provenance of ivory contained in instruments. Some commenters asked for
a rigorous and clearly defined method for documenting the age and
provenance of an item so that both buyers and sellers understand their
duties under the law. Others asked that we clarify how to determine the
weight of ivory in a manufactured or handcrafted piece (where it cannot
be removed and weighed) or how to determine whether the ivory is the
primary source of value of an item. Some commenters noted that, for the
de minimis exemption to function as intended, it is important that the
Service apply documentation requirements that are flexible enough to be
realistic and achievable. They pointed to the requirements articulated
in the ``use after import'' provisions of our CITES regulations at 50
CFR 23.55 as a good example and argued that the same standard should be
used for items subject to the de minimis exemption. We appreciate this
input and understand the concerns. We are developing clear guidance for
the public that we will make available before the effective date of
this final rule.
One commenter asked whether the Service intends to require
scientific testing of all ivory. Another commenter stated that many
types of forensic testing are expensive, often destructive to the
object, and sometimes unavailable due to an object's small size. They
noted, however, that an object whose ivory cannot be identified
forensically may be identified through expert analysis of trade
patterns for objects of that type, the maker of the object, and
geomapping of the object. They urged us to make clear that both of
these types of evidence (forensic and other expert analysis) are
acceptable. Another commenter asked us to clarify that, with respect to
manufactured items, contemporary evidence contained in catalogs, price
lists, and similar materials showing that a particular item was not
offered for sale after a given date would constitute evidence that the
item was manufactured prior to that date. Some commenters provided
information on nondestructive methods for determining age and species
of ivory objects, including both scientific methods and methodologies
employed by art historians.
Response: We agree that forensic testing is not necessarily
required. Provenance may be determined through a detailed history of
the item, including but not limited to, family photos, ethnographic
fieldwork, art history publications, or other information that
authenticates the article and assigns the work to a known period of
time or, where possible, to a known artist or craftsman. A qualified
appraisal or another method, including using information in catalogs,
price lists, and other similar materials that document the age by
establishing the origin of the item, can also be used.
With regard to the criteria for meeting the de minimis exception,
we consider an item to be made wholly or primarily of ivory if the
ivory component or components account for more than 50 percent of the
volume of the item. Likewise, if more than 50 percent of the value of
an item is attributed to the ivory component or components, we consider
the ivory to be the primary source of the value of that item. Value can
be ascertained by comparing a similar item that does not contain ivory
to one that does (for example, comparing the price of a basket with
ivory trim/decoration to the price of a similar basket without ivory
components). Though not required, a qualified appraisal or another
method of documenting the value of the item and the relative value of
the ivory component, including, as noted above, information in
catalogs, price lists, and other similar materials, can also be used.
We will not require ivory components to be removed from an item to
be weighed. Because we proposed the 200-gram limit with a particular
suite of existing items in mind, including certain musical instruments,
knife and gun grips, and certain household and decorative items, we
already have a good understanding of the types of items that qualify
for the de minimis exception. Examples of items that we do not expect
would qualify for the de minimis exception include chess sets with
ivory chess pieces (both because we would not consider the pieces to be
fixed or integral components of a larger manufactured item and because
the ivory would likely be the primary source of value of the chess
set), an ivory carving on a wooden base (both because it would likely
be primarily made of ivory and the ivory would likely be the primary
source of its value), and ivory earrings or a pendant with metal
fittings (again both because they would likely be primarily made of
ivory and the ivory would likely be the primary source of its value).
We realize that determining whether an object containing ivory
complies with these requirements may sometimes be difficult for persons
who are not ordinarily engaged in commercial trade of such articles.
Our law enforcement focus under this rule will be to help eliminate
elephant poaching by targeting persons engaged in or facilitating
illegal ivory trade. While it is the responsibility of each citizen to
understand and comply with the law, and that is our expectation with
regard to this regulation, we do not foresee

[[Page 36401]]

taking enforcement action against a person who has exercised due care
and reasonably determined, in good faith, that an article complies with
the de minimis requirements.
We will provide additional guidance on the implementation of these
criteria via our Web site, including how we will estimate the weight of
the ivory contained in a manufactured or handcrafted item and how we
will determine that an item is made ``wholly or primarily'' of ivory,
prior to the effective date of this rule.
We have already provided guidance, in the appendix to Director's
Order 210, regarding documentation to demonstrate that an item meets
the definition of ``antique'' under the ESA. We will provide additional
guidance to the regulated public regarding documentation and other
evidence that may be used to demonstrate that an item meets the
specific exceptions to the prohibitions in this rule. We will make that
information available on our Web site in advance of the effective date
of this rule.
(34) Comment: Some commenters noted that the Internal Revenue
Service has established an Art Advisory Panel that determines age and
value for all sorts of art and antiques. They suggested that the
Service may want to set up a similar panel of experts who can make
declarations that objects are in compliance with the ESA antiques
exemption.
Response: We do not believe that a third party panel or body is
necessary for the effective implementation of this rule, although we
encourage the regulated public to utilize available experts to provide
technical advice regarding the qualifications of an item that may
qualify for an exception to this rule. We will provide additional
guidance to the regulated public regarding documentation and other
evidence that may be used to demonstrate that an item meets the
specific exceptions to the prohibitions in this rule. We will make that
information available on our Web site in advance of the effective date
of this rule.
(35) Comment: The Service must provide a safe harbor, whereby an
affidavit from a qualified art, antiques, or ivory expert that the item
satisfies the ESA antiques exemption is deemed sufficient. The Service
could itself certify experts or require that such experts be certified
by a third party.
Response: We disagree. Anyone claiming the benefit of an exemption
from ESA prohibitions has the burden of proving that the exemption is
applicable. There are a variety of methods and forms of documentation
that can be used to demonstrate that the exemption applies. The Service
has a long history of implementing and enforcing the ESA, including the
antiques exemption. We do not believe that a safe harbor, as described
by the commenters, is appropriate for the effective implementation of
this rule. We do, however, encourage the public to utilize available
experts to provide technical advice regarding the qualifications of an
item that may qualify for an exception to this rule. See the other
responses under Comments on documentation requirements, including to
(34) above.
(36) Comment: The American Society of Appraisers asked whether and
to what extent the Service plans to pursue legal or administrative
recourse against appraisers who perform ``best efforts'' appraisals
only to discover after some time that key assumptions or determinations
that underpinned the appraisal are determined to be inaccurate.
Response: In Appendix 1 to Director's Order 210, we have provided
explicit information on what the Service will accept as a qualified
appraisal and facts we examine in determining the reliability of the
appraisal. An appraisal using appropriate professional expertise based
on the best available information at that time that is later determined
to be incorrect would not subject that appraiser to legal action under
this rule. We expect an appraiser or other individual to be able to act
in good faith in his or her professional capacity.
Comments on the U.S. role in the illegal ivory market. We received
a number of comments on the U.S. role in the illegal ivory market and
steps the Service should take to address ivory trafficking.
(37) Many commenters asserted that ivory trafficking is primarily a
problem in Asia and Africa, not here in the United States, and that the
best way to protect African elephants is to step up enforcement and
conservation efforts in Africa and in China. Some commenters cited
analyses of CITES Elephant Trade Information System (ETIS) data as
evidence that the United States is not part of the problem.
Response: Based on all available information, we believe that ivory
trafficking is a global problem, and that the United States has a duty
and responsibility to work with other countries around the world to
combat illegal trade in ivory and other wildlife parts and products. To
that end, we are actively engaged in combating poaching in African
elephant range states and wildlife trafficking in transit and consumer
states. We are supporting anti-poaching efforts in parks and other
protected areas, providing training to rangers, working collaboratively
on international investigations, supporting demand-reduction campaigns
in consumer countries, and pushing other countries to strengthen their
ivory trade controls. We disagree with the assertion that the United
States does not play a role in the market for illegal ivory and that we
do not have a duty and responsibility to take steps to control our own
domestic ivory market. Trafficking of ivory is a complex, global
problem, and it will take coordinated, focused efforts by all countries
involved as source, transit, or destination countries to bring it to an
end. Although the primary markets are in Asia, particularly in China
and Thailand, the United States continues to play a role as a
destination and transit country for illegally traded elephant ivory. We
made this point in the proposed rule, and it is apparent in the ETIS
reports cited by some commenters. We gave an overview in the proposed
rule of the seizures by Service wildlife inspectors of unlawfully
imported and exported elephant specimens over the years, and we
described multiple smuggling operations, investigated by Service
special agents, involving the trafficking of elephant ivory for U.S.
markets. We reported that, since 1990, the annual number of seizure
cases involving elephant specimens at U.S. ports has ranged from over
450 (in 1990) to 60 (in 2008); in most other years the number falls
between 75 and 250 cases. In 2012, the most recent year for which we
have complete data, there were about 225 seizure cases involving
elephant specimens, which resulted in seizure of more than 1,500 items
that contained or consisted of elephant parts or products. Nearly 1,000
of those items contained or consisted of elephant ivory. In his 2013
articles ``It's Not Just China, New York is Gateway for Illegal Ivory''
and ``The Big Ivory Apple,'' Daniel Stiles described a 2013 visit to
New York City during which he saw what appeared to be a ``massive
decline'' in the ivory market, compared to his visit a little more than
5 years earlier, with a 60 percent decrease in the number of outlets
selling ivory and an approximately 50 percent decrease in the number of
ivory items for sale. However, the author still found cause for concern
and concluded that ``New York and San Francisco appear to be gateway
cities for illegal ivory import in the U.S. . . China is not the only
culprit promoting elephant poaching through its illegal ivory markets.
The U.S. is right up there with them.'' In a very

[[Page 36402]]

recent (March 9, 2016) case, the senior auction administrator of a
gallery and auction house in Beverly Hills, California, pled guilty in
Federal court to conspiring to smuggle wildlife products made from
rhinoceros horn, elephant ivory, and coral with a market value of
approximately $1 million. He personally falsified customs forms by
stating that rhinoceros horn and elephant ivory items were made of
bone, wood, or plastic. We are revising the 4(d) rule for the African
elephant to more strictly regulate trade in African elephant ivory and
help to ensure that the U.S. ivory market is not contributing to the
poaching of elephants in Africa.
(38) Comment: The relative importance of the United States as a
destination for illegal ivory has been greatly exaggerated. This
misconception is attributed to the misreading of a table in Martin and
Stiles 2008 report, Ivory Markets in the USA, which identifies the
United States as having the second largest retail market for ivory in
the world.
Response: The United States has among the largest economies in the
world and has a large market for wildlife products, including ivory.
Some commenters provided information estimating the size of the legal
market for ivory in the United States. Although, by their nature,
illegal markets are difficult to quantify, we agree that it is not
accurate to characterize the United States as having the second-largest
illegal ivory market in the world, and to be clear, we have not done
so. We are aware, as the commenter notes, that others have made this
assertion. (See also the response to (56), below.)
(39) Comment: In describing the U.S. market in the preamble to the
proposed rule, the Service cited surveys done by Daniel Stiles and
stated that ``Stiles estimated, in his 2014 follow-up study, that as
much as one half of the ivory for sale in two California cities during
his survey had been imported illegally.'' In his comments on the
proposed rule, Mr. Stiles objected to that characterization and noted
that the report in question said nothing about ``imported illegally'';
it only stated that there is a much higher incidence of what appears to
be ivory of recent manufacture in California, roughly doubling from
about 25 percent in 2006 to about half in 2014, and that no conclusions
should be drawn about what percentage of ivory in the United States is
legal or illegal based on visual examination.
Response: It was certainly not our intention to mischaracterize Mr.
Stiles' work. In an effort to avoid any mischaracterization, we will
instead present excerpts from his surveys describing the U.S. role in
the illegal ivory trade. The report referred to here is titled
``Elephant Ivory Trafficking in California, USA'' (Stiles, 2015), and
the stated purpose (on p. 1) of the study was to ``ascertain the
current ivory trade in California and estimate what proportion might be
illegal.'' The author describes his methodology for determining the
date of manufacture and/or import of an item and notes that it is
fraught with difficulty and that it is subjective, based on the
investigator's experience, knowledge of worked ivory from different
regions, and clues gathered in conversations with informants or
descriptions and photographs on tear sheets on Web sites. He states
that the results should be considered a ``rough estimate.''
A summary of his results, in the abstract section, includes the
following: ``In Los Angeles, between 77% and 90% of the ivory seen was
likely illegal under California law (i.e., post-1977), and between 47%
and 60% could have been illegal under federal law. There is a much
higher incidence of what appears to be ivory of recent manufacture in
California, roughly doubling from approximately 25% in 2006 to about
half in 2014. In addition, many of the ivory items seen for sale in
California advertised as antiques (i.e., more than 100 years old)
appear to be more likely from recently killed elephants. Most of the
ivory products surveyed appear to have originated in East Asia.'' He
also states, on p. 15, that ``Based on the style of the possibly
illegal worked ivory, the investigator concluded that it originated, in
order of proportion, from East Asia, Africa, and Europe . . . most of
it was probably smuggled in sea or air shipments mixed in with mammoth
ivory, carved bone and resin pieces; shipped concealed and mislabeled
with other products (e.g., crafts, furniture); or carried in personal
luggage. The fact that the majority of illegal ivory in the United
States is coming from China makes sense, as a great deal of raw ivory
is transported from Africa to China where it is carved mainly in
factories in the Guangdong and Fujian provinces and then smuggled to
the United States.''
We recognize Mr. Stiles' experience and expertise in investigating
ivory markets around the world, and we recognize the difficulties
associated with estimating the age or date of manufacture or import
based on visual inspection. We do, in fact, recognize his conclusions
to be rough estimates. That said, his studies provide additional
evidence of the role of the United States in the illegal ivory trade.
(40) Comment: The Service must do more than focus on large-scale
smuggling of ivory and must address the rampant interstate trade in
ivory, which has a substantial negative cumulative impact on elephant
conservation.
Response: We agree that more holistic regulation of ivory trade is
necessary to address the U.S. role in this trade. The previous 4(d)
rule did not regulate sale or offer for sale in interstate commerce of
African elephant ivory, unless it was illegally imported into the
United States or unless it was a sport-hunted trophy imported in
violation of a permit condition. This rule goes further to prohibit
sale or offer for sale of ivory in interstate or foreign commerce and
delivery, receipt, carrying, transport, or shipment of ivory in
interstate or foreign commerce in the course of a commercial activity
with some limited exceptions. The final rule will improve controls on
the domestic market, which will make it more difficult to launder
illegal elephant ivory through the U.S. marketplace. Our target in this
action is illegal ivory trade that is contributing to pushing African
elephants toward extinction. Our goal is to thwart those engaged in
trafficking of African elephant ivory. We will focus our enforcement
efforts on people engaged in illegal activities that contribute to the
poaching of elephants in Africa. We will not focus our enforcement
efforts on people who legally possess and want to sell African elephant
ivory under the exceptions provided and who, in the exercise of due
care, have reasonably determined in good faith that an article complies
with one of the available exceptions.
We believe that the restrictions and exceptions in this rule are
necessary and advisable for the conservation of the African elephant
while not unnecessarily regulating or prohibiting certain activities
that do not contribute to elephant poaching and illegal ivory trade.
(41) Comment: The domestic ivory trade is not supplied by tusks
taken from elephants dying in Africa today; it runs entirely on ivory
that was legally imported before 1989. There is no demand for new raw
ivory in the United States. There is a ``glut of estate raw tusks in
the U.S.'' that sell for about 10-15 percent of the cost of those that
can be obtained in China. No informed trafficker would try to smuggle
tusks into the United States.
Response: We disagree. We cited numerous examples in the proposed
rule of ongoing illegal trade in ivory to the United States. Additional
examples have been documented since publication of the proposed rule.
Our

[[Page 36403]]

wildlife inspectors consistently interdict and seize illegal elephant
ivory. As recently as February 17, 2016, a New York antique dealer
pleaded guilty to trafficking in prohibited wildlife that included raw
and carved elephant ivory. He pleaded guilty to a felony Lacey Act
charge for the unlawful import of a pair of elephant tusks and
subsequent sale of those and four other elephant tusks to a
Massachusetts collector. He purchased the ivory in Canada and smuggled
it into the United States. The total value of the seized items is in
the thousands of dollars. Thus, recent law enforcement efforts
demonstrate that the United States plays a role in the illegal trade
and associated illegal killing of African elephants.
(42) Comment: U.S. demand can be adequately addressed by pre-2014
law, as the successful prosecutions demonstrate.
Response: Although we have successfully investigated and prosecuted
some cases in the last several years, our law enforcement personnel
have indicated that the current regulatory regime makes it extremely
difficult to effectively control illegal ivory trade in the United
States. See response to (39) above regarding the apparent availability
of illegal ivory in U.S. markets.
(43) Comment: The U.S. Fish and Wildlife Service should not be
fighting this battle with mostly law-abiding American citizens when
Chinese speculators are buying tons of poached ivory every year. Those
who wish to prohibit legal ivory trade are creating the conditions for
speculators to cash in; they are cutting off supply and creating
artificial scarcity. Strongly urge the Service to devote its energies
to solving the real problem--speculator demand for raw ivory in eastern
Asia.
Response: We agree that solving this problem requires a suite of
actions both domestically and internationally. This is a global
challenge requiring global solutions. The United States is working with
foreign governments, international organizations, nongovernmental
organizations, and the private sector to maximize impacts together.
These efforts aim to strengthen enforcement, reduce demand, and
increase cooperation to address these challenges. See the response to
(59) on other activities and initiatives in which we are engaged to
help stop the poaching of elephants and end the illegal trade in ivory.
Comments on trade in antique ivory. In the final rule, we define
antique (in paragraph (e)(1)) to mean any item that meets all four
criteria under section 10(h) of the ESA, and we clarify (in paragraph
(e)(9)) that antiques meeting this definition are not subject to the
provisions of this rule. In that same paragraph, we point to the AfECA
and remind readers that the provisions and prohibitions under AfECA
also apply to trade in African elephant ivory, regardless of the age of
the item.
(44) Comment: One commenter suggested adding the word
``nevertheless'' into the antiques paragraph, (e)(9), at the beginning
of the sentence on the African Elephant Conservation Act to clarify
that, while the ESA antiques exception does allow import of antiques,
the AfECA does not.
Response: We believe this is a useful suggestion and have amended
paragraph (e)(9) of the final rule accordingly. Additional text has
been added to make clear that nothing in this rule interprets or
changes any provisions or prohibitions that may apply under AfECA.
(45) Comment: Close the antiques loophole. By allowing sale of
antiques made largely or entirely of ivory you will leave open one of
the major loopholes used by smugglers today.
Response: The ESA antiques exception is statutory language enacted
by Congress. We do not have the authority to eliminate this exception.
(46) Comment: Some recent ivory carvings are artificially aged to
make them appear to be antiques. This practice underscores the need for
a greater burden of proof for genuine antiques.
Response: We believe that the prohibitions and exceptions in this
final rule are appropriate and necessary for the conservation of the
African elephant. With regard to elephant ivory, we agree that there
have been attempts to disguise the age of elephant ivory. However, we
have not, to date, had a comprehensive regulatory regime in place for
African elephant ivory. We believe that the prohibitions on interstate
commerce, the specific criteria to meet the exception for ESA antiques,
including clarification that the person claiming the benefit of the
antiques exception has the burden of demonstrating that it applies,
along with specific guidance such as that contained in Director's Order
210, are adequate to ensure that the antique exception is not exploited
to engage in illegal trade in non-antique ivory items.
(47) Comment: The Service is taking the approach that it cannot
distinguish legitimate antiques from new ivory. The legislative history
of the ESA demonstrates that Congress agreed that legitimate antiques
were distinguishable from newly harvested items.
Response: We fully agree that antiques can be distinguished from
non-antiques, and our experience in implementing the ESA has
demonstrated that fact. See Comments on documentation requirements,
above. What we are making clear in this final rule is that the burden
of demonstrating that an item qualifies for the ESA antiques exemption
is firmly on the person claiming the benefit of that exemption.
(48) Comment: One ivory restorer commented that, under this rule,
ivory that has been repaired after 1973 cannot be considered an antique
and, therefore, cannot be sold. He noted that he has rarely seen any
quality antique ivory that has not already been repaired and that he
considers this provision to be an intentional roadblock to commerce. He
added that much of his repair work requires no new ivory, just
rebuilding and removal of old glue and dirt.
Response: To qualify as an antique, an item must meet all four
criteria under section 10(h) of the ESA, including that it has not been
repaired or modified with any part of an ESA-listed species on or after
the date of enactment of the ESA (December 28, 1973). This provision is
contained in the statute and applies to all ESA-listed species; it is
not unique to this final rule or to African elephant ivory. We note,
however, that removing old glue and dirt, as described by the
commenter, would not be considered a repair or modification under the
ESA unless it involved the use of additional ivory or other material
from other ESA-listed species.
(49) Comment: Some commenters provided estimates of the value of
antique ivory in personal household collections in the United States
and the number of Americans who own antique ivory. One study, based on
information from public sources, including auction sales reports, and
interviews with ``over 30 important dealers, auction houses, individual
collectors and antique experts'' evaluated the value of ``high-end,
antique ivory objects'' in private collections. The author stated that
8.1 percent of U.S. households (9.5 million households) have a net
worth of $1 million or more, excluding their home, and that if 5
percent of these households own ivory, there are 475,000 households
``likely to possess antique ivory objects.'' The author assigned an
average value of $25,000 to the ivory in each of these households and
arrived at an estimated value of $11.9 billion for the antique ivory in
private collections in the United States.
Another paper on the scope of the antique ivory market in the
United

[[Page 36404]]

States stated that ``5-10% of all antique decorative arts objects are
made of or contain ivory or other endangered species materials.'' The
author provided ``a very rough estimate'' of 400 million or more
objects in the United States that contain or are made entirely of
ivory. (While he stated that the majority of these objects were made
``prior to World War II'' it is not clear how many of these items may
be antiques.) He also estimated that the total number of high-value
items worth more than $10,000 each is relatively small (probably
hundreds of thousands) whereas the number of more common decorative
items is huge (400 million). The author also estimated that between 1.5
million and 2.5 million items made from ivory enter into commerce
annually. Some commenters provided the results of a survey. The author
of the survey asserted that ``(i)f 13 million people own 2.4 objects
that have an average real value in today's market of $240 each, then we
can say that it is probable that incidental ivory possessions--
excluding pianos and major ivory collections--have an aggregate value
of $7.488 billion.'' Not all of these items would qualify as antiques,
however, as the average age of these objects was estimated to be 76
years (see also the response to (57), below).
One commenter asserted that ``the vast majority of ivory antiques
transactions are relatively small in value (less than $500)'' and
argued that requiring ``onerous and prohibitively expensive
documentation'' would effectively prevent people from taking part in
such transactions. These commenters, and others, asserted that the
proposed rule would impose extremely onerous and unnecessary
requirements on owners of ivory to demonstrate that an object satisfies
the antiques exemption, which would largely destroy the exemption and
render the vast majority of legitimate ivory antiques in the United
States worthless.
Response: We disagree. This rule does not impose any requirements
to demonstrate the antiques exemption that do not already exist for
other ESA-listed species. We regularly issue permits for ESA antiques,
and there remains an active trade in antiques that contain ESA-listed
species in the United States. The ESA states explicitly (in section
10(g)) that an individual seeking the benefit of an exception bears the
burden of demonstrating that an item meets that exception. We note that
a number of commenters provided information on nondestructive methods
for determining age and species of ivory objects, including both
scientific methods and methodologies employed by art historians. They
stated that the arts and antiques market is grounded in the ability to
determine the authenticity of items, and experts in the field are
capable of distinguishing legitimate antiques from forgeries. As noted
above, we encourage the regulated public to utilize available experts
to provide technical advice regarding the qualifications of an item
that may qualify for an exception to this rule. Appendix 1 to
Director's Order 210 provides guidance on the antique exception under
the ESA, including guidance on documentation that may be used to
demonstrate that an item meets the exception. We will develop and
communicate additional guidance on documentation and other information
that may be used to demonstrate how to meet the exception for ESA
antiques. See Comments on documentation requirements, above.
While some commenters estimated the value and age of ivory in
private household collections, this rule has no impact on private
household collections unless and until they are sold. We agree that the
majority of ivory antiques are small in value as stated by some
commenters (less than $500 per item or $240 per item).
For the purposes of estimating the impacts of the rule, we assume
that ivory (antique and non-antique) will continue to enter the legal
market at the same rate as prior to this rule. Therefore, we disagree
that between 1.5 million and 2.5 million ivory items enter commerce
annually, as estimated by one commenter. Based on our review of data
sources, the number of ivory items that are sold annually in the United
States is closer to 89,000 items (see economic analysis for more
information).
In our economic analysis, we estimate that sales in the domestic
market average $88.8 million to $1.2 billion annually. For a
conservative estimate of the domestic market analysis, we employ a
lower bound of $992 per item (consistent with the online auction market
average value) and an upper bound of $18,000 per item (which was the
highest lot sold price in live auctions).
Based on the assumption that the proportion of the value of antique
ivory items in domestic commerce resembles the export market (two
percent), we estimate the rule to impact from $1.8 million to $23.4
million in interstate commerce of non-antiques. Therefore, this rule
will not have an impact of billions of dollars, as some commenters have
asserted.
Comments on treatment of museums. After announcing our intention to
revise the 4(d) rule for the African elephant and prohibit sale and
offer for sale of African elephant ivory in interstate commerce, we
received input from representatives of the U.S. museum community. They
expressed their concern that prohibitions on interstate commerce will
impact their ability to acquire items for museum collections. In the
preamble to the proposed rule, we recognized that museums can play a
unique role in society by curating objects that are of historical and
cultural significance and sought input from the public regarding
whether we should incorporate an exception to the prohibitions on
interstate commerce for museums, either through this rulemaking process
or through a separate rulemaking process under the ESA. Additionally,
we sought comment on how best to define museums in this regard, given
the diverse interests that they serve.
We received a number of suggestions for the definition of
``museum,'' including the definition developed by the Institute of
Museum and Library Services (found at 2 CFR 3187.3), the Institute of
Museum and Library Services definition with some added provisions, and
the definition used by the International Council of Museums, with an
additional requirement that a museum must have been established for at
least 10 years prior to its first attempt at interstate procurement of
ivory. Some commenters urged us to defer this issue to a separate
rulemaking and comment period; others believe such an exception should
be included in this final rule.
(50) Comments: One commenter asked how museums, if there is an
exception made for them, would be able to engage in interstate commerce
when the proposed rule contains no such exception for other market
participants. The commenter urged the Service to consider expanding the
museum exception to include other reputable members of the arts and
antiquities community to facilitate this commerce and ensure that
pieces of cultural and historical significance are preserved for future
generations.
Some commenters supported an exception for museums and urged us to
consider such an exception to be expanded to include any entity that
holds a Federal income tax exception under section 501(c)(3) of the
Internal Revenue Code, as amended, which would allow museums to acquire
culturally significant items, churches to purchase used pipe organs
from other churches, and orchestras to obtain instruments for their
musicians.
Some commenters urged us to allow an exception not only for
interstate

[[Page 36405]]

commerce but also for import by U.S. art museums of works of art
satisfying the de minimis criteria.
Other commenters expressed concern about a possible exemption for
museums and noted that the range of entities considered to be
``museums'' is quite broad and includes a wide range of interests and
purposes. Other commenters were strongly opposed to an exception to the
prohibition on interstate commerce for museums. They stated their
belief that it is unnecessary, given the antiques exception contained
in the ESA and the de minimis exception included in the proposed rule.
Some asserted that entities purporting to be museums could abuse a
museum exception to perpetuate the trade in elephant ivory in a manner
that undermines elephant conservation.
Response: We believe that this is an important issue that warrants
further consideration. We received a range of ideas and opinions on how
to define a ``museum'' and whether or not entities so defined should be
treated differently than other groups under the ESA. This is a complex
issue that warrants careful consideration as any such decision will
have ramifications beyond trade in African elephant ivory and the scope
of this rulemaking. Therefore, we will explore the treatment of museums
under the ESA in a separate rulemaking process and seek comment from a
broader constituency regarding the potential benefits and risks of an
exemption from certain ESA prohibitions for museums. Until such time,
our regulations do not contain an exception to the prohibitions on
interstate and foreign commerce for museums.
Comments regarding import or export of ivory as part of a traveling
exhibition. Some commenters sought clarification regarding the
exception for items containing ivory that are part of a traveling
exhibition. Requirements for import or export of worked ivory as part
of a traveling exhibition are found in 50 CFR 17.40(e)(5)(ii).
(51) Comment: One commenter pointed to the requirement that items
that are part of a traveling exhibition must be marked or uniquely
identified and noted that marking of objects is not always practical.
The commenter stated that some museums and other lenders are unlikely
to permit their objects to be marked and requested that we clarify that
photographs may be used, as an alternative to marking, to uniquely
identify an item imported or exported as part of a traveling
exhibition.
Response: As the commenter noted, the requirement is that an item
be marked or uniquely identified (emphasis added). We agree that a
photograph may be used to identify an item, in place of a mark, as long
as the photograph allows a border official to verify that the
certificate and the item correspond.
(52) Comment: Some museum directors stated that, although the CITES
traveling exhibition certificate can, theoretically, work for an
exhibition organized by a foreign museum, not all countries issue
traveling exhibition certificates. While noting that the Service has
been helpful in trying to obtain traveling exhibition certificates from
these countries, the commenters identified the need for a more
permanent solution. In addition, some museum directors stated that the
traveling exhibition certificate is problematic for long-term loans, as
the maximum duration of a traveling exhibition certificate is 3 years,
which is often not sufficient. They acknowledged that this is not the
sole purview of the Service, but asked that we consider ways to extend
the maximum duration, remove the time limit, or allow certificates to
be extended without the necessity of bringing the object back to the
issuing country. It was suggested that, as an alternative, a pre-
Convention certificate could be used, conditioned to state that the
item is on loan from or to a U.S. museum, that it will be used for
exhibition only and will not be sold or otherwise transferred while
traveling internationally, and will be returned to the country that
issued the certificate.
Response: It is true that not all countries issue CITES traveling
exhibition certificates. As the commenters noted, we work with these
countries, as the need arises, to encourage them to issue such a
certificate or to find a suitable alternative. Alternatives may include
the use of a CITES pre-Convention certificate with conditions
specifying that international trade of the item must be under similar
conditions as those for trade under a traveling exhibition certificate.
We continue to work with other CITES Parties to promote the use of
traveling exhibition certificates and to streamline exchanges between
museums to the extent possible.
Comments on regulatory process. Some commenters expressed concern
about the process the Service has undertaken to revise the 4(d) rule.
(53) Comment: Some commenters asserted that the proposed rule
violates the APA notice-and-comment provisions because the Service
failed to provide evidence supporting its rationale for the revisions
and failed to estimate negative consequences to the domestic ivory
market; therefore, the public is not afforded a meaningful opportunity
to comment. They further assert that we have failed to establish a
linkage between the U.S. market and illegal ivory trade or poaching of
African elephants in the wild and have admitted that it is not possible
to predict how many elephants will be saved by revising the 4(d) rule.
Without being provided such evidence, they do not believe the public
has the opportunity to meaningfully comment. If finalized in its
current form, they believe this would also be a violation of the APA's
arbitrary and capricious standards.
Response: We disagree. An agency need not justify the rules it
selects in every detail, but it is required to explain the general
bases for the rules chosen. See Connecticut Light and Power v. NRC, 673
F. 2d 525 (D.C. Cir. 1982). We have thoroughly explained the bases for
the actions we proposed to take. In the preamble to the proposed rule,
we described the unprecedented increase in the illegal killing of
elephants, the alarming growth in illegal trade of elephant ivory, and
U.S. involvement in the illegal ivory trade. (See Comments on the U.S.
role in the illegal ivory market, above.)
It seems these commenters would require the Service to predict
exactly how many African elephants would be conserved before they
believe they can meaningfully comment pursuant to the APA. A
quantitative estimate of benefits is not necessary to satisfy the
purposes of the ESA. The Service finds that provisions in this 4(d)
rule are necessary and advisable to provide for the conservation of the
African elephant and has also included appropriate prohibitions from
section 9(a)(1) of the ESA. Thus, the final rule meets the standards
under section 4(d). Moreover, E.O. 12866 recognizes that some costs and
benefits are difficult to quantify and instructs agencies to adopt
regulations based on a reasoned determination that the benefits of the
intended regulation justify the costs. We have made a reasoned
determination based on a qualitative assessment of the rule's benefits.
(54) Comment: Some commenters asserted that Director's Order 210
(DO 210) establishes binding agency rules for enforcement of the AfECA
and the ESA and is thus a legislative rule, which requires notice and
comment under the APA.
Response: Although we have reflected certain provisions of DO 210
in the 4(d) rule, this final rule does not interpret or implement DO
210 or the AfECA, and we note that this rulemaking is being promulgated
in accordance with the APA.

[[Page 36406]]

DO 210 is a policy statement and not subject to the notice-and-
comment procedures of the APA. Notice-and-comment procedures are
required only under the APA (5 U.S.C. 553) for legislative rules with
the force and effect of law; ``interpretive rules, general statements
of policy, or rules of agency organization procedure, or practice'' are
exempted. 5 U.S.C. 553(b)(A) ; see also Nat'l Ass'n of Broadcasters v.
FCC, 569 F.3d 416, 425-26, 386 U.S. App. DC 259 (D.C. Cir. 2009). The
Attorney General's Manual on the Administrative Procedure Act (1947)
offers ``the following working definitions'':
Substantive rules--rules, other than organizational or procedural
rules under section 3(a)(1) and (2), issued by an agency pursuant to
statutory authority and which implement the statute, as, for example,
the proxy rules issued by the Securities and Exchange Commission
pursuant to section 14 of the Securities Exchange Act of 1934 (15
U.S.C. 78n). Such rules have the force and effect of law.
Interpretative rules--rules or statements issued by an agency to
advise the public of the agency's construction of the statutes and
rules which it administers.
General statements of policy--statements issued by an agency to
advise the public prospectively of the manner in which the agency
proposes to exercise a discretionary power.
DO 210 ``establishes policy and procedure for [Service] employees
to implement the National Strategy as it relates to the trade in
elephant ivory . . .'' and, thus, falls squarely within the ``General
statements of policy'' as defined in the Attorney General's Manual on
the Administrative Procedure Act. DO 210 is a general statement of
policy, informing employees and the public as to how the Service will
enforce the moratorium. Language in the DO 210 emphasizing employees'
discretionary power with regard to implementation supports this
position.
Further, under the Supreme Court's holding in Heckler v. Chaney, DO
210 is a statement of the Service's decision not to enforce the
moratorium to the fullest extent possible. See Daniel T. Shedd & Todd
Garvey, A Primer on the Reviewability of Agency Delay and Enforcement
Discretion, CRS REPORT, 4 (Sept. 4, 2014) (quoting Heckler, 470 U.S. at
832) (arguing that this statement is applicable to the Director's
Order). In Heckler, an agency's ``decision not to prosecute or enforce
. . . is a decision generally committed to an agency's absolute
discretion.'' DO 210 is not a final agency action subject to judicial
review.
(55) Comment: The proposed rule would prohibit interstate and
foreign sale of currently legal ivory products, unless the item falls
under the antiques exemption or the de minimis exception. Meeting these
standards will prove burdensome and difficult. If the proposal is
finalized in its present form, it would violate the dictates of justice
and fairness and would result in an unconstitutional taking of legally
imported ivory under the 5th Amendment.
Response: Under E.O. 12630, ``significant [Constitutional] takings
implications should . . . be identified and discussed'' in notices of
proposed rulemakings. The Service has concluded that the proposed rule
does not have significant takings implications.
This 4(d) rule applies to all African elephants and their parts,
including live and dead elephants, parts other than ivory, and products
made from elephant parts other than ivory. Compared to the restrictions
provided by statute and regulation for other ESA threatened species,
this rule places relatively few restrictions on live elephants and
parts and products other than ivory.
While the rule does restrict certain activities with elephant
ivory, people who lawfully possesses African elephant ivory can
continue to engage in many activities with their ivory. They can
continue to possess their ivory. They can gift it or bequeath it to
another person. They can sell it and engage in other commercial
activities with the ivory within their State provided the commercial
activity is allowed under other law. They can also import or export
ivory, sell or offer for sale ivory in interstate or foreign commerce,
and engage in other commercial activities in interstate or foreign
commerce provided they meet the requirements of the rule, in most cases
without first obtaining an ESA threatened species permit. The many
unregulated activities that may continue under the rule with elephants
and their parts and products, including ivory, as well as activities
that would be allowed, provided that regulatory requirements are met,
indicate that the rule proposes no significant takings implications.
Overall, this rule is comparable to provisions applicable to other
commercially valuable threatened species. For nearly all other
endangered and threatened species, practically all import, export, sale
or offer for sale in interstate or foreign commerce, and certain
activities in interstate or foreign commerce in the course of a
commercial activity are prohibited, unless the activity qualifies as a
particular purpose and the person obtains an ESA permit. These
standard, more stringent prohibitions under the ESA have never been
successfully challenged as a Constitutional taking.
For example, in Andrus v. Allard, 444 U.S. 51 (1979), an analogous
scenario challenging the prohibition of commercial transaction in parts
of birds legally killed before they came under the protection of the
Eagle Protection Act and the Migratory Bird Treaty Act, the Supreme
Court held the simple prohibition of the sale of lawfully acquired
property does not effect a taking in violation of the Fifth Amendment.
It noted the challenged regulations do not compel the surrender of the
artifacts in question, and there is no physical invasion or restraint
upon them. It found the denial of one traditional property right does
not always amount to a taking, nor is the fact that the regulations
prevent the most profitable use of appellees' property dispositive,
since a reduction in the value of property is not necessarily equated
with a taking.
(56) Comment: Mischaracterization by the Service of the Stiles data
not only violates the APA but also the Data Quality Act (DQA). One
commenter stated that ``Although the FWS characterized the U.S. as the
world's second largest market for illegal ivory, it bases this claim
largely on a report that Stiles compiled with Esmond Martin in 2008 . .
. [which] is likely due to the misreading of a table in his report. . .
.'' The commenter goes on to assert that, because this ``evidence'' is
utilized by the Service in the proposed rule, the public has not been
provided a true picture of the U.S. ivory market or its relation to the
illegal ivory trade.
Response: Nowhere in the proposed rule did we claim that the United
States is the second largest market for illegal ivory (or for legal
ivory) in the world. We quoted (on p. 45159) a 2004 report by Douglas
Williamson of TRAFFIC who stated that ``as one of the world's largest
markets for wildlife products, the [United States] has long played a
significant role in the international ivory trade.'' In his comments on
the proposed rule, Mr. Stiles states that he ``would like to dispel the
false claim that the U.S. is the second largest market for illegal
ivory consumption in the world--repeated in NGO campaigns and media
stories constantly.'' He attributes this misconception to an incorrect
interpretation of a table in the 2008 Martin and Stiles report. The
executive summary of that 2008 report states that ``The USA appeared to
have the second largest ivory retail market in

[[Page 36407]]

the world after China/Hong Kong, as determined by numbers of items seen
for sale.'' Although we did not refer to Mr. Stiles' characterization
of the size of the U.S. market (which he repeated in his 2015 report),
others who commented on the proposed rule did. The commenter has
incorrectly conflated the comments of others on this subject with the
text of the proposed rule. See our response to Mr. Stiles' comments
under (39), above.
(57) Comment: The Regulatory Flexibility Act (RFA) requires an
agency either to certify that a proposed rule will not have a
significant economic impact on a substantial number of small entities
or to conduct a full analysis that describes the effect of the rule on
small entities. The Service has certified that the proposed rule will
not have a significant impact on a substantial number of small
entities, but there is nothing in the record that supports this
certification. The Service estimates a two percent decrease in domestic
sales by assuming that the domestic market operates in much the same
way as the export market. There is no evidence to support this
assumption. The Service also states that they are proposing to take
this action to increase protection for African elephants and that
increased control of the domestic ivory market would benefit the
conservation of the African elephant. Both of these claims cannot be
true. If the proposed rule reduces domestic and export markets by two
percent, the revision cannot possibly have a measureable impact on the
illegal trade of African elephant ivory. Either the Service is grossly
underestimating the impact of the proposed rule or is grossly
overestimating the impact of the U.S. ivory market on illegal trade.
Response: We disagree. The provisions in the final rule, including
the clarification that anyone claiming the benefit of an exemption
under the ESA has the burden of proving that the exemption applies,
allow us to more strictly regulate the U.S. ivory market, which will
benefit the conservation of the African elephant by prohibiting those
activities that we believe are contributing to the poaching of
elephants and for which we believe the risk of illegal trade may be
high. We believe the major impact will be to ongoing illegal trade, of
which there remains ample evidence in the United States. As we noted in
the proposed rule, there are limited data available on the domestic
ivory market.
Some commenters provided estimates of the value of antique ivory in
personal collections (nearly $12 billion according to one document) and
the number of Americans who own antique ivory (hundreds of thousands of
households). (See Comments on trade in antique ivory, above). Some
commenters provided a study, based on an email survey sent to 167
individuals, which estimated the number of Americans who possess
objects containing ivory. The author of the study states that the
results of the survey indicate that there are 13 million Americans who
own an average of 2.4 objects that they believe to be made from or with
ivory. Most were considered family heirlooms. The average age of those
objects was estimated to be 76 years, and the average value was
estimated to be $240 each. These estimates were extrapolated to arrive
at an aggregate value of over $7 billion for ``incidental ivory
possessions'' (excluding pianos). We understand that there are many
Americans who own ivory, including African elephant ivory. These rough
estimates of the quantity, age, and value of ivory in the United States
help to provide a general picture of private household collections in
the United States, but this rule has no impact on private household
collections unless and until they are sold. Furthermore, because most
of the objects are considered family heirlooms, we expect that these
items would most likely be passed from one generation to another. We
assume for the purposes of our analysis that ivory (both antique and
non-antique) will continue to enter the legal market at the same rate
as prior to this rule. In our economic analysis, we estimate that
domestic ivory sales average $88.8 million to $1.2 billion annually,
with non-antique sales representing about $1.8 million to $23.4 million
annually.
Some commenters provided information on the economic impact of the
proposed rule on American craftsmen and artisans (See (32) above). We
have used this information in the Regulatory Flexibility Analysis to
describe the types of establishments that will be impacted by this
rule. We used the data available to us, including the export data from
our Office of Law Enforcement, to make reasonable assumptions to
approximate the potential economic impact of the proposed rule,
including impacts on interstate commerce. We evaluated the declared
value of worked ivory exports during a recent 5-year period, which
varied from $32.1 million to $175.7 million. The declared value of
items containing African elephant ivory that were less than 100 years
old (and, therefore, could not qualify as ESA antiques) ranged from
$607,000 to $3.7 million annually during the same time period. As this
rule will no longer allow the commercial export of non-antique ivory,
we expect, based on the information available, that, on average,
commercial export of worked ivory will decrease by about two percent.
With regard to the domestic market, while the final rule will
result in prohibitions on certain activities in interstate and foreign
commerce, it will have no impact on commercial activities within a
State (intrastate commerce). Businesses will not be prohibited by the
final rule from selling raw or worked ivory within the State in which
they are located, unless prohibited under State law.
Under the final rule, certain commercial activities, such as sale
in interstate or foreign commerce of raw ivory and non-antique worked
ivory, with the exception of those items that qualify for the de
minimis exception, will no longer be permitted. In our economic
analysis, we estimate that domestic ivory sales range from $88.8
million to $1.2 billion annually. Using the best data available, the
percentage of non-antiques in the export market (two percent) is
extrapolated to the domestic market, as an upper-bound estimate of
impacts, based on the assumption that the domestic market would be
similar to the export market. Thus, the decrease in sales of non-
antique ivory in the domestic market ranges from $1.8 million to $23.4
million annually. If those items that do not qualify as antiques
constitute a greater proportion of commercial activities, the impacts
could be greater. However, because we are allowing commercial
activities in interstate and foreign commerce with certain items
containing de minimis amounts of ivory, and many of these items would
be precluded from export, we believe that an even smaller percentage of
the legal domestic market would be impacted compared to the export
market.
Contrary to the commenter's claim that it cannot be true that we
are taking this action to increase protection for African elephants,
but that these actions will not have a significant impact on current
legal trade, we believe that these actions will substantially impact
our ability to effectively control trade and that will contribute to a
reduction in illegal killing of elephants. As we described in the
proposed rule, there is ample evidence that the United States continues
to be a market for illegal trade and that a substantial amount of ivory
currently available in the United States was illegally imported. These
increased controls will lead to conservation benefits for African
elephants by making

[[Page 36408]]

it more difficult for unscrupulous actors to launder illegal ivory
through the legal market.
(58) Comment: One commenter asserted that certification of this
rule under the RFA was inappropriate and that the Service should
conduct an Initial Regulatory Flexibility Analysis. They stated that
the Service proposes to prohibit all commercial sale of ivory in
interstate or foreign commerce with the exception of those items that
could meet the de minimis exemption and that ``there are 24,730
businesses that are either art dealers or used merchandise dealers that
could be affected by the rule. These commercial vendors comprise 70% of
the potentially affected businesses and over 84% of these businesses
are small entities.'' They went on to conclude that ``over 84% of small
businesses in the affected industries will be impacted.''
Response: The commenter's concerns are based on an incorrect
assessment of what the rule would do and an unrealistic estimate of the
number of small businesses that would be impacted. Under the provisions
of the final rule, in addition to the exception for manufactured items
that contain a small (de minimis) amount of ivory, interstate and
foreign commerce in antiques will also still be allowed (see paragraphs
(e)(3) and (e)(9) in the final rule). Table 2 in the preamble to the
proposed rule (expanded and reprinted below, as Table 3, in this
document) provides the number of businesses within affected industries
and the percentage of those businesses that are considered small
businesses, based on the North American Industry Classification System
(NAICS). The table includes 7 industries and a total of 35,350
businesses within those industries. Eighty-four percent of those
businesses are considered small businesses. However, it is very
misleading to suggest that most of these businesses, small or
otherwise, would be impacted by this rule.
The commenter has pointed to the 24,730 businesses classified under
the NAICS as either used merchandise stores or art dealers. This total
number includes 19,793 used merchandise stores (NAICS code 453310), 74
percent of which are considered small businesses, and 4,937 art dealers
(NAICS code 453920), 95 percent of which are considered small
businesses. The NAICS defines these categories as follows:
453310 Used Merchandise Stores: This industry comprises
establishments primarily engaged in retailing used merchandise,
antiques, and secondhand goods (except motor vehicles, such as
automobiles, RVs, motorcycles, and boats; motor vehicle parts; tires;
and mobile homes). Examples include: Antique shops; Used household-type
appliance stores; Used book stores; Used merchandise thrift shops; Used
clothing stores; and Used sporting goods stores. This category
obviously contains a wide range of businesses selling a wide range of
products.
453920 Art Dealers: This industry comprises establishments
primarily engaged in retailing original and limited edition art works.
Included in this industry are establishments primarily engaged in
displaying works of art for retail sale in art galleries. This category
also includes art auctions.
Extrapolating data from market surveys conducted by Martin and
Stiles in 2006 and Stiles in 2014, we estimate that this rule would
impact 3,200 retail outlets selling ivory products nationwide (see
economic analysis) and represent 12 percent of all used merchandise
stores and art dealers. Under this rule, these retail outlets would
incur costs of one percent or less of total sales (see Regulatory
Flexibility Act section for more detail). The other five categories of
businesses in Table 2 in the preamble to the proposed rule are: Musical
instrument manufacturing; sporting and recreational goods and supplies
merchant wholesalers; metal kitchen cookware, utensil, cutlery, and
flatware (except precious) manufacturing; jewelry and silverware
manufacturing; and all other miscellaneous wood product manufacturing.
Another commenter estimated that there are about 300 people in the
United States creating finished products using ivory components. Of
these, the commenter estimated that about 15 individuals make 10 pool
cues per year with ivory ferrules. This would translate to less than
one percent of the industry ``All other miscellaneous wood product
manufacturing'' (NAICS 321999). While the commenter did not provide
data regarding the industries under which the remainder of the 300
establishments would be categorized, we can estimate that the potential
number of establishments represents two percent of establishments in
the affected industries (excluding Used Merchandise Stores) or three
percent of establishments in the affected industries (excluding Used
Merchandise Stores and Sporting and Recreational Goods Stores). The
2008 Martin and Stiles report estimated that there were 120 to 200
ivory craftsmen in the United States, which would represent one to two
percent of establishments in the affected industries.
We recognize that we are unable to conclusively quantify the number
of small businesses within the individual industries that would be
affected by the rule. The final rule prohibits sale or offer for sale
of ivory in interstate or foreign commerce and delivery, receipt,
carrying, transport, or shipment of ivory in interstate or foreign
commerce in the course of a commercial activity, except for qualifying
antiques and manufactured items that contain a small (de minimis)
amount of ivory and meet certain criteria. Our evaluation of the
current market, particularly our estimate of the proportion of the
trade that will continue to be allowed as antiques, indicates only
about a two percent decrease in commercial exports of African elephant
ivory ($2.1 million annually) and a similar two percent decrease in
interstate commerce ($1.8 million to $23.4 million).
(59) Comment: The Service has ignored obvious alternatives to a
domestic ivory ban that would be much more effective at saving
elephants without depriving Americans of property rights. Among the
alternatives to a ban on ivory trade that the Service failed to
evaluate or consider: Increasing support for conservation and local
community programs in Africa; increasing support for local African law
enforcement; enforcing Pelly sanctions against China and other Asian
and African countries for illegal ivory trade; bolstering embassy
support in African range countries and destination countries for
poached ivory to increase diplomatic pressure on governments; and
rewarding African countries with effective conservation programs by
allowing an international trade of ivory from those countries.
Response: The Service is actively engaged in the types of
activities described by the commenter. We are supporting anti-poaching
efforts in parks and other protected areas, providing training to
rangers, working collaboratively on international investigations,
supporting demand-reduction campaigns in consumer countries, and
pushing other countries to strengthen their ivory trade controls. This
final rule is in addition to other actions taken by the Service and
other U.S. Government agencies to combat illegal trade in elephant
ivory and other protected wildlife.
As noted in the proposed rule, on July 1, 2013, President Obama
signed Executive Order 13648 on Combating Wildlife Trafficking. The
Executive Order calls on executive departments and agencies to take all
appropriate actions within their authority to ``enhance domestic
efforts to combat

[[Page 36409]]

wildlife trafficking, to assist foreign nations in building capacity to
combat wildlife trafficking, and to assist in combating transnational
organized crime.'' On February 11, 2014, President Obama issued the
National Strategy for Combating Wildlife Trafficking, which identifies
three strategic priorities for a whole-of-government approach to
tackling wildlife trafficking: Strengthening enforcement; reducing
demand for illegally traded wildlife; and expanding international
cooperation and commitment. On February 11, 2015, the U.S. Departments
of the Interior, Justice, and State, as co-chairs of the President's
Task Force on Wildlife Trafficking, released the implementation plan
for the National Strategy. Building upon the Strategy's three strategic
priorities, the plan lays out next steps, identifies lead and
participating agencies for each objective, and defines how progress
will be measured. The implementation plan reaffirms our Nation's
commitment to work in partnership with governments, local communities,
nongovernmental organizations, and the private sector to stem the
illegal trade in wildlife.
Multiple U.S. Government agencies are involved in the fight against
wildlife trafficking and are engaged in activities under all three of
the strategic priorities identified in the National Strategy. U.S.
Government grants and initiatives in support of efforts to combat
poaching of elephants and trafficking of elephant ivory include
projects that provide for: Training, operating expenses, and equipment
for anti-poaching patrols; purchase and maintenance of vehicles and
other equipment for rangers; expenses for aerial surveillance; and
training of dogs for detection and investigation of wildlife crime and
protection of rangers and wildlife. U.S. Government law enforcement
professionals provide training and expertise to foreign partners in
Africa through the International Law Enforcement Academy (ILEA) in
Botswana (created through a bilateral agreement between the governments
of Botswana and the United States to provide training for
representatives from countries in sub-Saharan Africa). The U.S.
Government also promotes and supports the development and operation of
regional Wildlife Enforcement Networks and provides training to develop
capacities to investigate, prosecute, and adjudicate wildlife crimes.
The U.S. Fish and Wildlife Service Office of Law Enforcement has placed
special agents in U.S. embassies in key regions (including in China,
Botswana, Tanzania, and Thailand) to build wildlife law enforcement
capacity, coordinate investigations, and facilitate information sharing
and training. The Service and other U.S. Government agencies also
support research, monitoring and assessment of elephant populations,
landscape and community conservation efforts, and projects to mitigate
human-elephant conflict and to reduce demand for elephant ivory. All of
these U.S. Government initiatives contribute to the conservation of the
African elephant.
Eliminating poaching of elephants and trafficking of ivory can be
achieved only through a concerted, multifaceted international effort.
In issuing the National Strategy for Combating Wildlife Trafficking,
President Obama recognized that ``this is a global challenge requiring
global solutions'' and stated that we will work with foreign
governments, international organizations, nongovernmental
organizations, and the private sector to maximize our impacts in
addressing this challenge. In addition, the National Strategy asserts
that ``the United States must curtail its own role in the illegal trade
in wildlife and must lead in addressing this issue on the global
stage.'' The United States is committed to doing its part to fight
wildlife trafficking and to ensure the conservation of African
elephants in the wild. This final rule is one component of this
multifaceted effort.

Changes From the Proposed Rule to the Final Rule

All changes from the proposed rule of July 29, 2015 (80 FR 45154),
to this final rule were discussed above in the responses to comments
received. In summary, the provisions of this final rule are largely
unchanged from those of the proposed rule, with the exception of words
that have been added in response to requests in the comments:
We added a sentence in paragraph (e) to remind readers
that the provisions under AfECA also apply.
We added the words ``or handcrafted'' following the word
``manufactured'' in paragraphs (e)(3), (5), (6), (7), and (8) to cover
works that are unique and made primarily by hand that might not be
considered ``manufactured.'' We added the words ``or integral'' to the
criterion in paragraph (e)(3) that describes the ivory being a fixed
component of a larger manufactured or handcrafted item to cover items
that have small ivory pieces that can be easily removed (like nuts or
pegs on some wooden tools or instruments).
We added text to the criteria in paragraphs (e)(3)(iii)
and (v) to clarify that when we say ``primary'' or ``primarily'' we
mean more than 50 percent.
We added text to paragraph (e)(5)(ii)(B) to clarify that,
for items that are part of a traveling exhibition, either a CITES
traveling exhibition certificate or an equivalent CITES document may be
used.
We rephrased our reference to the African Elephant
Conservation Act in paragraph (e)(9) where we clarify that, while the
ESA antiques exception allows import of antiques, the moratorium under
the AfECA does not.
The effects of this final rule on trade are set forth below in
Table 1. This table is only for guidance on the revisions to the
existing ESA 4(d) rule for the African elephant; see the rule text for
details. All imports and exports must be accompanied by appropriate
CITES documents and meet other FWS import/export requirements.

Table 1--How Will Changes to the African Elephant 4(d) Rule Affect Trade
in African Elephant Ivory?
------------------------------------------------------------------------
What activities are
currently allowed/
prohibited under What will change
statute, regulation, when the final rule
or law enforcement goes into effect?
discretion?
------------------------------------------------------------------------
In 2014, the Service This column
revised Director's describes the
Order No. 210 contents of the
(effective May 15, final rule in
2014) and U.S. general terms.
CITES implementing Please refer to the
regulations [50 CFR final rule text for
part 23] (effective details. These
June 26, 2014). provisions will go
These actions into effect 30 days
created new rules after the final
and guidance for rule is published
trade in elephant in the Federal
ivory.. Register.

[[Page 36410]]

Import...................... Commercial Commercial
What's allowed:..... The final rule does
No not include any
commercial imports changes for
allowed.. commercial imports.
....................
Noncommercial Noncommercial
What's allowed: The final rule
Sport- includes the
hunted trophies (no following changes
limit).. for noncommercial
Requires imports:
issuance of a Limits
threatened species import of sport-
permit under 50 CFR hunted trophies to
17.32 for import of two per hunter per
African elephant year.
sport-hunted Requires
trophies from issuance of a
Appendix-I threatened species
populations.. permit under 50 CFR
Law 17.32 for import of
enforcement and all African
bona fide elephant sport-
scientific hunted trophies.
specimens.. Removes the
Worked requirement that
elephant ivory that worked elephant
was legally ivory has not been
acquired and sold since February
removed from the 25, 2014. All other
wild prior to requirements for
February 26, 1976, worked elephant
and has not been ivory (listed in
sold since February the previous
25, 2014, and is column) must be
either:. met.
[cir] Part of a
household move or
inheritance (see
Director's Order
No. 210 for
details);.
[cir] Part of a
musical instrument
(see Director's
Order No. 210 for
details); or
[cir] Part of a
traveling
exhibition (see
Director's Order
No. 210 for
details).
What's prohibited:
Worked
ivory that does not
meet the conditions
described above..
Raw ivory
(except for sport-
hunted trophies)..
Export...................... Commercial Commercial
What's allowed: The final rule
CITES pre- further restricts
Convention worked commercial exports
ivory, including to only those items
antiques.. that meet the
What's prohibited:.. criteria of the ESA
Raw ivory.. antiques
exemption.*
Raw ivory remains
prohibited
regardless of age.
Noncommercial Noncommercial
What's allowed: The final rule
Worked further restricts
ivory.. noncommercial
What's prohibited:.. exports to the
Raw ivory.. following
categories:
Only those
items that meet the
criteria of the ESA
antiques
exemption.*
Worked
elephant ivory that
was legally
acquired and
removed from the
wild prior to
February 26, 1976,
and is either:
[cir] Part of a
household move
or inheritance;
[cir] Part of a
musical
instrument; or
[cir] Part of a
traveling
exhibition.
Worked
ivory that
qualifies as pre-
Act.
Law
enforcement and
bona fide
scientific
specimens.
Raw ivory remains
prohibited
regardless of age.
Foreign commerce............ There are no The final rule
restrictions on includes the
foreign commerce. following changes
for foreign
commerce:
Restricts
foreign commerce
to:
[cir] items that
meet the
criteria of the
ESA antiques
exemption,* and
[cir] certain
manufactured or
handcrafted
items that
contain a small
(de minimis)
amount of ivory.
Prohibits
foreign commerce
in:
[cir] sport-
hunted trophies,
and
[cir] ivory
imported/
exported as part
of a household
move or
inheritance.
Sales across State lines What's allowed: The final rule
(interstate commerce). Ivory includes the
lawfully imported following changes
prior to the date for interstate
the African commerce:
elephant was listed Further
in CITES Appendix I restricts
(January 18, 1990) interstate commerce
[seller must to only:
demonstrate].. [cir] items that
Ivory meet the criteria
imported under a of the ESA antiques
CITES pre- exemption,* and
Convention [cir] certain
certificate [seller manufactured or
must demonstrate].. handcrafted items
that contain a
small (de minimis)
amount of ivory. **
Prohibits
interstate commerce
in:
[cir] ivory imported
under the
exceptions for a
household move or
inheritance, or for
law enforcement or
genuine scientific
purposes, and
[cir] sport-hunted
trophies.

[[Page 36411]]

Sales within a State What's allowed: The final rule does
(intrastate commerce). Ivory not include any
lawfully imported changes for
prior to the date intrastate
the African commerce.
elephant was listed
in CITES Appendix I
(January 18, 1990)--
[seller must
demonstrate]..
Ivory
imported under a
CITES pre-
Convention
certificate--[selle
r must
demonstrate]..
Noncommercial movement Noncommercial use, The final rule does
within the United States. including not include any
interstate and changes for
intrastate movement noncommercial
within the United movement within the
States, of legally United States.
acquired ivory is
allowed.
Personal possession......... Possession and The final rule does
noncommercial use not include any
of legally acquired changes for
ivory is allowed. personal
possession.
------------------------------------------------------------------------
* To qualify for the ESA antiques exemption, an item must meet all of
the following criteria [seller/importer/exporter must demonstrate]:
A. It is 100 years or older.
B. It is composed in whole or in part of an ESA-listed species;
C. It has not been repaired or modified with any such species after
December 27, 1973; and
D. It is being or was imported through an endangered species ``antique
port.''
Under Director's Order No. 210, as a matter of enforcement discretion,
items imported prior to September 22, 1982, and items created in the
United States and never imported must comply with elements A, B, and C
above, but not element D.
** To qualify for the de minimis exception, manufactured or handcrafted
items must meet all of the following criteria:
(i) If the item is located within the United States, the ivory was
imported into the United States prior to January 18, 1990, or was
imported into the United States under a Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES) pre-
Convention certificate with no limitation on its commercial use;
(ii) If the item is located outside the United States, the ivory was
removed from the wild prior to February 26, 1976;
(iii) The ivory is a fixed or integral component or components of a
larger manufactured or handcrafted item and is not in its current form
the primary source of the value of the item, that is, the ivory does
not account for more than 50% of the value of the item;
(iv) The ivory is not raw;
(v) The manufactured or handcrafted item is not made wholly or primarily
of ivory, that
is, the ivory component or components do not account for more than 50%
of the item by
volume;
(vi) The total weight of the ivory component or components is less than
200 grams; and
(vii) The item was manufactured or handcrafted before the effective date
of this rule.

Required Determinations

Regulatory Planning and Review: Executive Order 12866 provides that
the Office of Information and Regulatory Affairs in the Office of
Management and Budget will review all significant rules. The Office of
Information and Regulatory Affairs has determined that this rule is
significant because it may raise novel legal or policy issues.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the Nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The Executive Order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. E.O. 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this rule in a manner
consistent with these requirements.
A brief assessment to identify the economic costs and benefits
associated with this rule follows. The Service has prepared an economic
analysis, as part of our review under the National Environmental Policy
Act (NEPA), which we made available for review and comment (see the
paragraph in this Required Determinations section on the National
Environmental Policy Act). This final rule revises the 4(d) rule, which
regulates trade of African elephants (Loxodonta africana), including
African elephant parts and products. We are revising the 4(d) rule to
more strictly control U.S. trade in African elephant ivory. Revision of
the 4(d) rule means that African elephants are subject to some of the
standard provisions for species classified as threatened under the ESA.
This means that the taking of live elephants and (with certain
exceptions) import, export, and commercial activities in interstate or
foreign commerce of African elephant parts and products containing
ivory will generally be prohibited without a permit issued under 50 CFR
17.32 for ``Scientific purposes, or the enhancement of propagation or
survival, or economic hardship, or zoological exhibition, or
educational purposes, or incidental taking, or special purposes
consistent with the purposes of the [ESA].'' The final rule contains
specific exceptions for certain activities with specimens containing de
minimis quantities of ivory; ivory contained in musical instruments,
traveling exhibitions, inherited items, and items that are part of a
household move that meet specific conditions; ivory imported or
exported for scientific or law enforcement purposes; certain live
elephants; and ivory items that qualify as ``pre-Act'' or as antiques
under the ESA. Some of these exceptions remain prohibited under the
AfECA import moratorium. However, under Director's Order 210, as
amended on May 15, 2014, as a matter of law enforcement discretion, the
Service will not enforce the AfECA moratorium with respect to these
limited exceptions meeting specific criteria.
This rule regulates only African elephants and African elephant
ivory. Asian elephants and parts or products from Asian elephants,
including ivory, are regulated separately under the ESA. Ivory from
marine species such as walrus is also regulated separately under the
Marine Mammal Protection Act (16 U.S.C. 1361 et seq.). Ivory from
extinct species such as mammoths is not regulated under statutes
implemented by the Service.
Impacted markets include those involving U.S. citizens or other
persons subject to the jurisdiction of the United

[[Page 36412]]

States that buy, sell, or otherwise commercialize African elephant
ivory products across State lines and those that buy, sell, or
otherwise commercialize such specimens in international trade. Examples
of products in trade containing African elephant ivory include cue
sticks, pool balls, knife handles, gun grips, furniture inlay, jewelry,
artwork, and musical instruments.
The market for African elephant products, including ivory, is not
large enough to have major data collections or reporting requirements,
which results in a limited amount of available data for economic
analysis. Some import and export data are available from the Service's
Office of Law Enforcement and Division of Management Authority, and
from reports produced by other organizations. On the whole, the
available data provide a general overview of the African elephant ivory
market. Using this information, we can make reasonable assumptions to
approximate the potential economic impact of revision of the 4(d) rule
for the African elephant. In our proposed rule, we solicited public
input on impacts to sales, percentage of revenue impacted, and the
number of businesses affected, particularly with regard to interstate
and foreign commerce, for which we had the least amount of information,
to help quantify these costs and benefits.
Imports. A moratorium on the import of African elephant ivory other
than sport-hunted trophies was established under the AfECA and has been
in place since 1989. In recent years, the Service has allowed, as a
matter of law enforcement discretion, the import of certain antique
African elephant ivory. Director's Order No. 210, issued in February
2014, clarified that Service employees must strictly implement and
enforce the AfECA moratorium on the importation of raw and worked
African elephant ivory, regardless of age, while, as a matter of law
enforcement discretion, allowing noncommercial import of certain items,
including law enforcement and scientific items, musical instruments,
items as part of a household move or inheritance, and exhibition items,
where it can be demonstrated that the ivory was removed from the wild
prior to 1976. We are reflecting this provision of Director's Order No.
210 in the 4(d) rule (except for antiques, which are exempt from this
4(d) rule, but remain subject to the AfECA moratorium). Import of live
African elephants and non-ivory African elephant parts and products
will continue to be allowed under the revisions, provided the
requirements at 50 CFR parts 13, 14, and 23 are met. Import of African
elephant sport-hunted trophies will be limited to two trophies per
hunter per year. This may impact about seven hunters, representing
about three percent to four percent of hunters importing African
elephant trophies, annually.
Exports. Under the current 4(d) rule, raw ivory may not be exported
from the United States for commercial purposes under any circumstances.
In addition, export of raw ivory from the United States is prohibited
under the AfECA. Therefore, the revisions to the 4(d) rule will have no
impact on exports of raw ivory. Revision of the 4(d) rule means that
export of worked African elephant ivory will be prohibited without an
ESA permit issued under 50 CFR 17.32, except for specimens that qualify
as ``pre-Act'' or as ESA antiques and certain musical instruments;
items in a traveling exhibition; items that are part of a household
move or inheritance; items exported for scientific purposes; and items
exported for law enforcement purposes that meet specific conditions
and, therefore, may be exported without an ESA permit. Export of live
African elephants and non-ivory products made from African elephants
will continue to be allowed, provided the requirements at 50 CFR parts
13, 14, and 23 are met.
From 2007 to 2011, the total declared value of worked African
elephant ivory exported from the United States varied widely from $32.1
million to $175.7 million. The declared value of items containing
African elephant ivory that were less than 100 years old (and,
therefore, could not qualify as ESA antiques) ranged from $607,000 to
$3.7 million annually during the same time period. As this rule will no
longer permit the commercial export of non-antique ivory, we expect,
based on the information currently available, that, on average,
commercial export of worked ivory will decrease by about $2.1 million
annually (two percent, by value, of worked ivory exports).
Domestic and Foreign Commerce. The final rule prohibits certain
commercial activities such as sale in interstate or foreign commerce of
African elephant ivory and delivery, receipt, carrying, transport, or
shipment of ivory in interstate or foreign commerce in the course of a
commercial activity (except for qualifying ESA antiques and certain
handcrafted or manufactured items containing de minimis amounts of
ivory) without an ESA permit issued under 50 CFR 17.32. As noted above,
permits issued under 50 CFR 17.32 must be for ``Scientific purposes, or
the enhancement of propagation or survival, or economic hardship, or
zoological exhibition, or educational purposes, or incidental taking,
or special purposes consistent with the purposes of the [ESA].''
Otherwise, commercial activities in interstate and foreign commerce
with live African elephants and African elephant parts and products
other than ivory will continue to be allowed under the revisions to the
4(d) rule. While revisions to the 4(d) rule will generally result in
prohibitions on sale or offer for sale in interstate or foreign
commerce as well as prohibitions on delivery, receipt, carrying,
transport, or shipment in interstate or foreign commerce in the course
of a commercial activity of both raw and worked African elephant ivory,
the rule will not have an impact on intrastate commerce. Businesses
will not be prohibited by the 4(d) rule from buying and selling raw or
worked ivory within the State in which they are located. (There are,
however, restrictions under our CITES regulations at 50 CFR 23.55 for
intrastate sale of elephant ivory.)
As noted earlier, comprehensive data for the African elephant ivory
market do not exist. Thus we estimate the value of the domestic market
(including retail establishments, online auctions, and live auctions)
using the best available data, which include reports that describe
subsets of the domestic market along with public comments.
To extrapolate retail outlet data nationwide, assumptions are made
using the best available data. Although the States of New York, New
Jersey, California, and Washington have enacted stringent legislation
prohibiting most ivory sales and Hawaii has new legislation ready to be
signed by the governor, we have not excluded establishments in these
states in order to estimate the largest potential impact. In 2006,
Martin and Stiles surveyed 16 major cities across the United States to
identify retail establishments trading in worked ivory (including ivory
from African elephants). Using this information, along with more recent
data, we have estimated that in 2016 there are 423 establishments in
those 16 cities averaging 22 ivory items per outlet (see economic
analysis). These establishments represent 11 percent of used
merchandise stores and art dealers (423 ivory outlets of 3,996
establishments within the 16 cities). Applying this ratio (11 percent)
to all used merchandise and art dealer establishments nationwide yields
approximately 2,700 establishments selling 60,000 ivory items.
For online auctions, the International Fund for Animal Welfare
(IFAW) reported that there are two major online

[[Page 36413]]

auction aggregators (LiveAuctioneers.com and AuctionZip.com) but
reported sales data for only LiveAuctioneers.com. By extrapolating data
from a 9-week period, the authors estimated that LiveAuctioneers.com
sell about 13,200 ivory lots that average $992 per lot and are worth
$13.0 million annually. To extrapolate online auction data nationwide,
we considered the annual revenue of LiveAuctioneers.com ($2.5 million
to $5 million) and AuctionZip.com ($500,000 to $1 million) (Manta
2016). Since AuctionZip.com is about 80 percent smaller than
LiveAuctioneers.com, we assume that AuctionZip.com may have about 80
percent less of the ivory sales as well ($2.6 million). To determine
the national annual online ivory sales and account for ivory sales on
AuctionZip.com and any other smaller online auctions, the estimate is
doubled to $26.1 million, of which non-antiques represent $574,000.
For live auctions, IFAW investigated 14 auctions and found 833
ivory lots were sold over a 3-month period. Extrapolating to an annual
estimate would result in 14 auction houses selling 3,332 ivory lots
annually and averaging 238 ivory lots per auction house. The highest
sold lot price ranged from $1,220 to $18,000. IFAW only investigated
auctions that were identified as selling ivory during the scoping
process and did not tabulate how many ivory lots were ultimately sold.
Therefore, the percentage of live auctions selling ivory items and the
number of ivory items sold is unknown. While we recognize that the
impact on non-antique ivory sales in live auctions may be greater than
the range of $72,600 to $1.3 million, we do not have information
regarding the underlying distribution of potentially impacted auctions.
However, based on publicly available information, we can estimate that
there are as many as 8,097 auction houses in the United States that may
sell ivory. Therefore, we expect that more than 14 auction houses sell
ivory lots in a given year, but we have no basis to estimate the number
of auction houses actually selling ivory or the quantity of ivory
offered for sale. Due to the data limitations for live auctions and the
methodology used in the 2014 IFAW report noted above, we are unable to
extrapolate the 2014 IFAW report to a national estimate.
Table 2 summarizes the estimated domestic ivory sales from online
auctions, live auctions, retail stores, and exports. IFAW reported that
online auction sales and live auction sales should not be summed due to
potential double counting because 50 percent of the live auctions also
sold items online. However, for the purpose of this analysis, because
live auctions were not extrapolated nationwide, data from both online
and live auctions are summed. For live auction sales, the lower bound
was estimated using the average price per lot in online auction sales
($992), while the upper bound was estimated using the highest lot sold
price in live auction sales ($18,000). For retail stores, the lower
bound was estimated using the average price per lot in online auction
sales ($992), while the upper bound was estimated using the highest lot
sold price in live auctions ($18,000). By extrapolating data from a
variety of sources, we estimate that domestic ivory sales are between
$88.8 million and $1.2 billion annually.
Assuming that the domestic market is similar to the export market,
we estimate non-antique worked ivory domestic sales will decrease by
about $1.8 million to $23.4 million annually (two percent of domestic
sales) under this rule. We are not aware of any other data (in
published reports or public comments) that estimate a larger percentage
by value of non-antiques in the marketplace. Without data for a
plausible range of impacts, we cannot improve the robustness of the
analysis with a sensitivity analysis (Economists Incorporated 2016).
Thus, non-antique sales in the domestic market would decrease by $1.8
million and $23.4 million annually.
Because we will allow intrastate sales and domestic and foreign
commercial activities with certain items containing de minimis amounts
of ivory, and many of these items will be precluded from export, it is
possible that an even smaller percentage of the domestic market will be
impacted compared to the export market. Our proposed rule requested
information from the public about the potential impact to the domestic
market. One commenter estimated the antique ivory in private American
collections is worth $11.9 billion; however, trade in items that
qualify as ESA antiques will not be affected by this rule.
The total annual decrease in non-antique ivory sales from exports,
U.S. auctions, and retail stores, will represent two percent of all
ivory sales. Thus, we expect that total ivory sales, including exports
and sales in the domestic market, will decrease by $3.9 million to
$25.5 million annually under this rule (see Table 2).

Table 2--Potential Total Impact to Annual Ivory Sales
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lower bound estimate Upper bound estimate
Number of -----------------------------------------------------------------------------
Type of seller ivory Average Non-antique Average Non-antique
items: 2016 price per Total sales sales price per Total sales sales
estimate item ($,000) ($,000) item ($,000) ($,000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Online Auctions.............................................. 26,312 $992 $26,097.0 $574.1 $992 $26,097.0 $574.1
Live Auctions................................................ 3,332 992 3,302.0 72.6 18,000 59,976.0 1,319.5
Retail Stores................................................ 59,847 992 59,367.8 1,187.4 18,000 1,077,238.8 21,544.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Domestic Sales..................................... 89,491 992 88,766.9 1,834.1 15,069 1,163,311.8 23,438.4
Total Export Sales................................... 1,040 79,000 92,963.5 2,062.0 79,000 92,963.5 2,062.0
------------------------------------------------------------------------------------------
Total.................................................... 90,531 ........... 181,730.4 3,896.1 ........... 1,256,275.3 25,500.4
--------------------------------------------------------------------------------------------------------------------------------------------------------

Revising the 4(d) rule for the African elephant will improve
domestic regulation of the U.S. market, as well as foreign markets
where commercial activities involving elephant ivory are conducted by
U.S. citizens, and facilitate enforcement efforts within the United
States. We are taking this action to increase protection for African
elephants in response to the alarming rise in poaching of African
elephants, which is fueling the rapidly expanding illegal trade in
ivory. As noted in the preamble to this final rule, the United States
continues to play a role as a destination and transit country for
illegally traded elephant ivory. Increased control of the U.S. domestic

[[Page 36414]]

market and foreign markets where commercial activities involving
elephant ivory are conducted by U.S. citizens will benefit the
conservation of the African elephant.
Regulatory Flexibility Act: Under the Regulatory Flexibility Act
(as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever a Federal agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions) (5
U.S.C. 601 et seq.). However, no regulatory flexibility analysis is
required if the head of an agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. Thus, for a regulatory flexibility analysis to be required,
impacts must exceed a threshold for ``significant impact'' and a
threshold for a ``substantial number of small entities.'' See 5 U.S.C.
605(b). SBREFA amended the Regulatory Flexibility Act to require
Federal agencies to provide a statement of the factual basis for
certifying that a rule will not have a significant economic impact on a
substantial number of small entities.
The U.S. Small Business Administration (SBA) defines a small
business as one with annual revenue or employment that meets or is
below an established size standard. To assess the effects of the rule
on small entities, we focused on businesses that buy or sell elephant
ivory. Businesses produce a variety of products from elephant ivory,
including cue sticks, pool balls, knife handles, gun grips, furniture
inlay, jewelry, and instrument parts. Depending on the type of product
produced, these businesses could be included in a number of different
industries, including (1) Musical Instrument Manufacturing (North
American Industry Classification System (NAICS) 339992), where small
businesses have less than $10.0 million in average annual receipts; (2)
Sporting and Recreational Goods and Supplies Merchant Wholesalers
(NAICS 423910), where small businesses have fewer than 100 employees;
(3) All Other Miscellaneous Wood Product Manufacturing (NAICS 321999),
where small businesses have fewer than 500 employees; (4) Metal Kitchen
Cookware, Utensil, Cutlery, and Flatware (except Precious)
Manufacturing (NAICS 332215), where small businesses have fewer than
500 employees; (5) Jewelry and Silverware Manufacturing, (NAICS
339910), where small businesses have fewer than 500 employees; (6) Used
Merchandise Stores (NAICS 453310), where small businesses have less
than $7.5 million in average annual receipts; (7) Art Dealers (NAICS
453920), where small businesses have less than $7.5 million in average
annual receipts; (8) All other miscellaneous store retailers except
tobacco (NAICS 453998), where small businesses have less than $7.5
million in average annual receipts; (9) All other support services,
which includes independent auctioneers (NAICS 561990), where small
businesses have less than $11.0 million in average annual receipts; and
(10) Electronic Auctions (NAICS 454112), where small businesses have
less than $35.5 million in average annual receipts. Table 3 describes
the number of businesses within each industry and the estimated
percentage of small businesses. The U.S. Economic Census does not
capture the detail necessary to determine the number of small
businesses that are engaged in commerce with African elephant ivory
products within these industries. Therefore, we utilized various
sources and public comments to estimate the potential number of
businesses impacted. Based on the distribution of small businesses with
these industries as shown in Table 3, we expect that the majority of
the entities involved with trade in African elephant ivory would be
considered small as defined by the SBA.

Table 3--Distribution of Businesses Within Affected Industries
----------------------------------------------------------------------------------------------------------------
Percentage of Percentage of
NAICS Code Description Total number small businesses
of businesses businesses impacted
----------------------------------------------------------------------------------------------------------------
339992.......................... Musical instrument 597 73 <3
manufacturing.
423910.......................... Sporting and recreational 5,953 97 <3
goods and supplies merchant
wholesalers.
321999.......................... All other miscellaneous wood 1,763 100 <3
product manufacturing.
332215.......................... Metal kitchen cookware, 188 99 <3
utensil, cutlery, and
flatware (except precious)
manufacturing.
339910.......................... Jewelry and silverware 2,119 100 <3
manufacturing.
453310.......................... Used merchandise stores....... 19,793 74 10
453920.......................... Art dealers................... 4,937 95 10
454112.......................... Electronic Auctions........... 431 99 1
453998.......................... All other miscellaneous store 15,475 83 ..............
retailers except tobacco
(includes auction houses).
561990.......................... All other support services 12,940 84 ..............
(includes independent
auctioneers).
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau, 2012 County Business Patterns.

The impact on individual businesses is dependent on the percentage
of interstate and export sales that involve non-antique African
elephant ivory that would not fall under the de minimis exception. That
is, the impact depends on where businesses are located, where their
customers are located, and the kinds of items containing ivory that
they sell. Thus, we expect that individual businesses may face a range
of impacts from closure to minimal revenue decrease. We do not have
sufficient information on business profiles to determine with certainty
the percent of revenues affected by the rule, but we do estimate the
potential impacts using the best available data.
For auctions (NAICS 453998 and NAICS 561990), IFAW reported that
``In general, ivory constituted a small part of all the respondents'
overall inventories--somewhere between 1 and 5 percent.'' Since sale of
antique ivory will still be allowed under this rule, we expect that a
smaller percentage of inventories will be impacted. Thus, this rule
will not have a significant impact on auctions.
For electronic auctions (NAICS 454112), IFAW reported that about
five online auction aggregator Web sites may sell ivory products while
noting that

[[Page 36415]]

eBay and Etsy no longer permit the sale of ivory products. Five
establishments out of 420 small electronic auctions does not constitute
a significant number of small businesses.
Table 4 shows the distribution of impacted retail outlets by size
category. We assume that the impacted retail outlets will have the same
size category distribution as the population of establishments. Small
businesses for these industries have annual receipts less than $7.5
million. For the purpose of this analysis, we include impacted
businesses that earn less than $10 million or do not operate the entire
year. Under these criteria, 2,354 businesses (10 percent) would be
categorized as small.

Table 4--Distribution of Impacted Retail Outlets by Size Category
[NAICS 453310 and NAICS 453920]
----------------------------------------------------------------------------------------------------------------
Number of
Percentage of businesses
Size category by sales/receipts/revenue Total Percentage of sales by impacted
establishments establishments revenue (2,720
category nationwide)
----------------------------------------------------------------------------------------------------------------
Less than $250,000.............................. 7,304 30 4 804
$250,000 to $499,999............................ 3,223 13 6 355
$500,000 to $999,999............................ 2,459 10 8 271
$1,000,000 to $2,499,999........................ 1,922 8 12 212
$2,500,000 to $4,999,999........................ 926 4 9 102
$5,000,000 to $9,999,999........................ 705 3 7 78
$10,000,000 to $24,999,999...................... 1,443 6 15 159
$25,000,000 to $49,999,999...................... 931 4 10 400
Firms not operated for the entire year.......... 3,635 15 3 102
$50,000,000 to $99,999,999...................... 459 2 (D) 51
$100,000,000 to $249,999,999.................... 366 1 (D) 40
$250,000,000 or more............................ 1,339 5 (D) 147
----------------------------------------------------------------------------------------------------------------
(D) Data withheld by U.S. Census Bureau to avoid disclosing data for individual companies.

Table 5 shows the potential impact to retail outlets. We assume
that non-antique ivory sales are distributed at the same percentage of
total sales within each size category. Thus, businesses with annual
receipts less than $250,000 would be allocated four percent of non-
antique ivory sales (Table 4). Under the lower bound estimate, small
businesses would incur losses of 0.02 percent to 0.06 percent of sales.
Under the upper bound estimate, small businesses would incur losses of
0.3 percent to 1.1 percent of sales. Therefore, this rule does not have
a significant economic impact on retail outlets.

Table 5--Potential Impact to Retail Outlets
[NAICS 453310 and 453920 ($,000)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Lower bound Upper bound
businesses --------------------------------------------------------------------------------
Size category by sales/receipts/ revenue \1\ impacted Total non- Percent of Total non- Percent of
(2,720 antique Ivory sales sales per antique Ivory sales sales per
nationwide) ivory sales per business business ivory sales per business business
--------------------------------------------------------------------------------------------------------------------------------------------------------
Less than $250,000....................................... 804 $52.0 $0.1 0.05 $943.2 $1.2 0.94
$250,000 to $499,999..................................... 355 68.2 0.2 0.06 1,237.0 3.5 1.07
$500,000 to $999,999..................................... 271 97.9 0.4 0.05 1,775.6 6.6 0.87
$1,000,000 to $2,499,999................................. 212 145.0 0.7 0.04 2,631.1 12.4 0.71
$2,500,000 to $4,999,999................................. 102 102.0 1.0 0.03 1,850.1 18.2 0.48
$5,000,000 to $9,999,999................................. 78 88.4 1.1 0.02 1,604.8 20.7 0.28
$10,000,000 to $24,999,999............................... 159 181.5 1.1 0.01 3.294.2 20.7 0.12
Firms not operated for the entire year................... 400 37.5 0.1 0.07 680.0 1.7 1.36
$25,000,000 to $49,999,999............................... 102 116.8 1.1 <0.01 2,120.0 20.7 0.06
----------------------------------------------------------------------------------------------
$50,000,000 to $99,999,999............................... 51 (D)
$100,000,000 to $249,999,999............................. 40
$250,000,000 or more..................................... 147
--------------------------------------------------------------------------------------------------------------------------------------------------------
(D) Data withheld by U.S. Census Bureau to avoid disclosing data for individual companies.
\1\ Source: U.S. Census Bureau 2012.

One commenter estimated that there are about seven people in the
United States who purchase tusks (from individuals who imported them
prior to 1989) and cut them into a variety of forms for U.S. craftsmen
to finish. These craftsmen work the ivory pieces into finished
products, including pool cues, knife handles, and piano keys. He
estimated that there are about 15 individuals making pool cues with
ivory ferrules and that there are a total of about 300 people in the
United States creating finished products using ivory components. This
rule will impact craftsmen working with ivory in the United States.
While the commenter does not provide data regarding the

[[Page 36416]]

industries under which these 300 establishments would be categorized,
we can estimate that the potential number of establishments represents
two percent of establishments in the affected industries (NAICS 339992,
423910, 321999, 332215, and 339910) or three percent of establishments
in the affected industries (NAICS 339992, 321999, 332215, and 339910).
Therefore, this rule does not impact a significant number in the
affected industries. The final rule does not impact intrastate (within
a State), commerce so those buying and selling within the State in
which they reside will be able to continue to do so (where such
activity is allowed under State law). In addition, there are
alternative materials available to craftsmen, including mammoth ivory
and ivory substitutes, which may decrease some impacts.
This rule has an economic impact on U.S. craftsmen working with
elephant ivory because it prohibits the interstate sale of items
containing African elephant ivory manufactured after the effective
date. Martin and Stiles estimated in their 2008 report that there are
``a minimum of 120 craftsmen, including restorers, working in ivory at
least several weeks a year'' and that the ``general feeling [at that
time] was that the number has been decreasing over past years, with
older people retiring and fewer young people replacing them.'' One
commenter estimated that domestic ivory carvers sell $1.5 million per
year in ivory blanks to other craftsmen. We did not receive from
commenters, and we are not able to provide, an estimate of the total
value of products produced by such craftsmen. One commenter estimated
that yearly sales of cue sticks containing ivory amount to $1.7 million
per year. To the extent that these craftsmen are unable to utilize
alternate materials (including, for example, mammoth ivory, cow bone,
or deer antler) and that their business is conducted across State
lines, they will be impacted by this rule.
Overall, we estimate that worked ivory exports will decrease about
$2.1 million annually, which represents about two percent of the total
declared value of worked ivory exported from 2007 to 2011. This
estimate is based on the total declared value of worked African
elephant ivory exported from the United States. The declared value of
items containing African elephant ivory that were less than 100 years
old (and, therefore, could not qualify as antiques) ranged from
$607,000 to $3.7 million annually. The best available information does
not provide any indication that there are differences in the
proportion, by value, of antiques in domestic and foreign commerce.
Therefore, we also estimate that domestic sales will decrease by up to
two percent annually. Based on our estimate of the domestic ivory
market to be about $88.8 million to $1.2 billion, we estimate that
domestic sales will decrease by $1.8 million to $23.4 million annually.
This sales decrease of two percent will be incurred among the various
businesses and industries, which would face a range of impacts from
minimal revenue decrease to closure. Because we are allowing domestic
commercial activities with certain items containing de minimis amounts
of ivory, and many of these items will be precluded from export, it is
possible that an even smaller percentage of the domestic market will be
impacted compared to the export market.
Based on the available information, we do not expect these changes
to have a substantial economic impact. Thus, we do not expect the rule
to have a significant economic impact on a substantial number of small
entities. We, therefore, certify that this 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.).
A Regulatory Flexibility Analysis is not required. Accordingly, a Small
Entity Compliance Guide is not required.
This rule creates no substantial fee or paperwork changes in the
permitting process. The regulatory changes require issuance of ESA
permits for import of all sport-hunted African elephant trophies. We
estimate that we will issue 300 ESA permits per year for these sport-
hunted trophies, with a fee of $100 per permit. These changes are not
major in scope and would create only a modest financial or paperwork
burden on the affected members of the general public. The authority to
regulate activities involving ESA-listed species already exists under
the ESA and is carried out through regulations contained in 50 CFR part
17.
Small Business Regulatory Enforcement Fairness Act: This rule is
not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory
Enforcement Fairness Act. This rule:
a. Will not have an annual effect on the economy of $100 million or
more. This rule revises the 4(d) rule for African elephant, which makes
the African elephant subject to the same provisions applied to other
threatened species not covered by a 4(d) rule, with certain exceptions.
It will allow us to effectively regulate ivory trade in the United
States and to ensure that the U.S. market for ivory is not contributing
to poaching of elephants in Africa and the illegal ivory trade, without
unnecessarily restricting activities that have no conservation effect
or are strictly regulated under other law. This rule will not have a
negative effect on this part of the economy. It will affect all
importers, exporters, re-exporters, and domestic and certain traders in
foreign commerce of African elephant ivory equally, and the impacts
will be evenly spread among all businesses, whether large or small.
b. Will not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, tribal, or local
government agencies; or geographic regions.
c. 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: Under the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.):
This rule does not impose an unfunded mandate on State, local, or
tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or tribal governments or the private sector. The final rule
imposes no unfunded mandates. A statement containing the information
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is
not required.
Takings: This rule does not effect a taking of private property or
otherwise have taking implications under Executive Order 12630. While
certain activities that were previously unregulated will now be
regulated, possession and other activities with African elephant ivory
such as sale in intrastate commerce will remain unregulated under
Federal law. A takings implication assessment is not required.
Federalism: Under the criteria in section 1 of Executive Order
13132, this rule does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement. These
revisions to 50 CFR part 17 do not contain significant federalism
implications. A federalism summary impact statement is not required.
Civil Justice Reform: This rule complies with the requirements of
Executive Order 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and

[[Page 36417]]

(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation with Indian tribes: The Department of the Interior
strives to strengthen its government-to-government relationship with
Indian tribes through a commitment to consultation with Indian tribes
and recognition of their right to self-governance and tribal
sovereignty. We have evaluated this rule under the Department's
consultation policy and under the criteria in Executive Order 13175 and
have determined that it has no substantial direct effects on federally
recognized Indian tribes and that consultation under the Department's
tribal consultation policy is not required. Individual tribal members
must meet the same regulatory requirements as other individuals who
trade in African elephants, including African elephant parts and
products.
Paperwork Reduction Act: This rule contains a new information
collection requirement associated with applications for permits to
import sport-hunted African elephant trophies (FWS Form 3-200-19). This
new requirement requires approval of the Office of Management and
Budget (OMB) under the PRA.
Under current regulations, permits are required for import of
sport-hunted African elephant trophies only from certain countries. OMB
has reviewed and approved the collection of information under the
current regulations and assigned OMB Control Number 1018-0093, which
expires May 31, 2017.
This final rule increases protection for and benefits the
conservation of African elephants by more strictly controlling U.S.
trade in ivory, without unnecessarily restricting activities that have
no conservation effect or are strictly regulated under other law. We
are taking this action in response to an unprecedented increase in
poaching of elephants across Africa to supply an escalating illegal
trade in ivory. This rule requires permits for import of all African
elephant sport-hunted trophies; i.e., from both Appendix-I and
Appendix-II populations. We requested that OMB approve, on an emergency
basis, our request to collect information associated with permits to
import African elephant sport-hunted trophies from Appendix-II
populations. We asked for emergency approval because of the potential
negative effects of delaying publication of this final rule. OMB
approved our request and assigned OMB Control No. 1018-0164, which
expires November 30, 2016.
Title: Import of Sport-Hunted African Elephant Trophies, 50 CFR 17.
OMB Control Number: 1018-0164.
Service Form Number: 3-200-19.
Type of Request: Request for a new OMB control number.
Description of Respondents: Individuals.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion.
Estimated Number of Respondents: 300.
Estimated Number of Annual Responses: 300.
Estimated Completion Time per Response: 20 minutes.
Estimated Total Annual Burden Hours: 100.
Estimated Total Nonhour Burden Cost: $30,000 associated with
application fees.
We will publish a notice in the Federal Register announcing our
intent to seek regular (3-year) approval for this information
collection requirement and soliciting public comment for 60 days. At
any time, interested members of the public and affected agencies may
comment on the information collection requirements contained in this
rule. Please send comments to the Information Collection Clearance
Officer, U.S. Fish and Wildlife Service, MS BPHC, 5275 Leesburg Pike,
Falls Church, VA 22041-3803 (mail); or [email protected] (email).
National Environmental Policy Act (NEPA): This rule does not
constitute a major Federal action significantly affecting the quality
of the human environment. A detailed statement under the National
Environmental Policy Act of 1969 is not required because we conducted
an environmental assessment and reached a Finding of No Significant
Impact. This finding and the accompanying environmental assessment are
available online at http://www.regulations.gov at Docket Number FWS-HQ-
IA-2013-0091.
Energy Supply, Distribution, or Use: This rule is not a significant
energy action under the definition in Executive Order 13211. A
Statement of Energy Effects is not required. This final rule revises
the current regulations in 50 CFR part 17 regarding trade in African
elephants and African elephant parts and products. This final rule will
not significantly affect energy supplies, distribution, or use.

References Cited

A list of references cited is available online at http://www.regulations.gov at Docket Number FWS-HQ-IA-2013-0091.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

For the reasons given in the preamble, we amend title 50, chapter
I, subchapter B of the Code of Federal Regulations as follows:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.

0
2. Section 17.40 is amended by revising paragraph (e) to read as
follows:

Sec. 17.40 Special rules--mammals.

* * * * *
(e) African elephant (Loxodonta africana). This paragraph (e)
applies to any specimen of the species Loxodonta africana whether live
or dead, including any part or product thereof. The African Elephant
Conservation Act (16 U.S.C. 4201 et. seq.), and any moratorium under
that act, also applies. Except as provided in paragraphs (e)(2) through
(9) of this section, all of the prohibitions and exceptions in
Sec. Sec. 17.31 and 17.32 apply to the African elephant. Persons
seeking to benefit from the exceptions provided in this paragraph (e)
must demonstrate that they meet the criteria to qualify for the
exceptions.
(1) Definitions. In this paragraph (e), antique means any item that
meets all four criteria under section 10(h) of the Endangered Species
Act (16 U.S.C. 1539(h)). Ivory means any African elephant tusk and any
piece of an African elephant tusk. Raw ivory means any African elephant
tusk, and any piece thereof, the surface of which, polished or
unpolished, is unaltered or minimally carved. Worked ivory means any
African elephant tusk, and any piece thereof, that is not raw ivory.
(2) Live animals and parts and products other than ivory and sport-
hunted trophies. Live African elephants and African elephant parts and
products other than ivory and sport-hunted trophies may be imported
into or exported from the United States; sold or offered for sale in
interstate or foreign commerce; and delivered, received, carried,
transported, or shipped in interstate or foreign commerce in the course
of a commercial activity without a threatened species permit issued
under Sec. 17.32, provided the requirements in 50 CFR parts 13, 14,
and 23 have been met.

[[Page 36418]]

(3) Interstate and foreign commerce of ivory. Except for antiques
and certain manufactured or handcrafted items containing de minimis
quantities of ivory, sale or offer for sale of ivory in interstate or
foreign commerce and delivery, receipt, carrying, transport, or
shipment of ivory in interstate or foreign commerce in the course of a
commercial activity is prohibited. Except as provided in paragraphs
(e)(5)(iii) and (e)(6) through (8) of this section, manufactured or
handcrafted items containing de minimis quantities of ivory may be sold
or offered for sale in interstate or foreign commerce and delivered,
received, carried, transported, or shipped in interstate or foreign
commerce in the course of a commercial activity without a threatened
species permit issued under Sec. 17.32, provided they meet all of the
following criteria:
(i) If the item is located within the United States, the ivory was
imported into the United States prior to January 18, 1990, or was
imported into the United States under a Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES) pre-
Convention certificate with no limitation on its commercial use;
(ii) If the item is located outside the United States, the ivory
was removed from the wild prior to February 26, 1976;
(iii) The ivory is a fixed or integral component or components of a
larger manufactured or handcrafted item and is not in its current form
the primary source of the value of the item, that is, the ivory does
not account for more than 50 percent of the value of the item;
(iv) The ivory is not raw;
(v) The manufactured or handcrafted item is not made wholly or
primarily of ivory, that is, the ivory component or components do not
account for more than 50 percent of the item by volume;
(vi) The total weight of the ivory component or components is less
than 200 grams; and
(vii) The item was manufactured or handcrafted before July 6, 2016.
(4) Import/export of raw ivory. Except as provided in paragraphs
(e)(6) through (9) of this section, raw ivory may not be imported into
or exported from the United States.
(5) Import/export of worked ivory. Except as provided in paragraphs
(e)(6) through (9) of this section, worked ivory may not be imported
into or exported from the United States unless it is contained in a
musical instrument, or is part of a traveling exhibition, household
move, or inheritance, and meets the following criteria:
(i) Musical instrument. Musical instruments that contain worked
ivory may be imported into and exported from the United States without
a threatened species permit issued under Sec. 17.32 of this part
provided:
(A) The ivory was legally acquired prior to February 26, 1976;
(B) The instrument containing worked ivory is accompanied by a
valid CITES musical instrument certificate or equivalent CITES
document;
(C) The instrument is securely marked or uniquely identified so
that authorities can verify that the certificate corresponds to the
musical instrument in question; and
(D) The instrument is not sold, traded, or otherwise disposed of
while outside the certificate holder's country of usual residence.
(ii) Traveling exhibition. Worked ivory that is part of a traveling
exhibition may be imported into and exported from the United States
without a threatened species permit issued under Sec. 17.32 provided:
(A) The ivory was legally acquired prior to February 26, 1976;
(B) The item containing worked ivory is accompanied by a valid
CITES traveling exhibition certificate (see the requirements for
traveling exhibition certificates at 50 CFR 23.49) or equivalent CITES
document;
(C) The item containing ivory is securely marked or uniquely
identified so that authorities can verify that the certificate
corresponds to the item in question; and
(D) The item containing worked ivory is not sold, traded, or
otherwise disposed of while outside the certificate holder's country of
usual residence.
(iii) Household move or inheritance. Worked ivory may be imported
into or exported from the United States without a threatened species
permit issued under Sec. 17.32 for personal use as part of a household
move or as part of an inheritance if the ivory was legally acquired
prior to February 26, 1976, and the item is accompanied by a valid
CITES pre-Convention certificate. It is unlawful to sell or offer for
sale in interstate or foreign commerce or to deliver, receive, carry,
transport, or ship in interstate or foreign commerce and in the course
of a commercial activity any African elephant ivory imported into the
United States as part of a household move or inheritance. The exception
in paragraph (e)(3) of this section regarding manufactured or
handcrafted items containing de minimis quantities of ivory does not
apply to items imported or exported under this paragraph (e)(5)(iii) as
part of a household move or inheritance.
(6) Sport-hunted trophies. (i) African elephant sport-hunted
trophies may be imported into the United States provided:
(A) The trophy was legally taken in an African elephant range
country that declared an ivory export quota to the CITES Secretariat
for the year in which the trophy animal was killed;
(B) A determination is made that the killing of the trophy animal
will enhance the survival of the species and the trophy is accompanied
by a threatened species permit issued under Sec. 17.32;
(C) The trophy is legibly marked in accordance with 50 CFR part 23;
(D) The requirements in 50 CFR parts 13, 14, and 23 have been met;
and
(E) No more than two African elephant sport-hunted trophies are
imported by any hunter in a calendar year.
(ii) It is unlawful to sell or offer for sale in interstate or
foreign commerce or to deliver, receive, carry, transport, or ship in
interstate or foreign commerce and in the course of a commercial
activity any sport-hunted African elephant trophy. The exception in
paragraph (e)(3) of this section regarding manufactured or handcrafted
items containing de minimis quantities of ivory does not apply to ivory
imported or exported under this paragraph (e)(6) as part of a sport-
hunted trophy.
(iii) Except as provided in paragraph (e)(9) of this section, raw
ivory that was imported as part of a sport-hunted trophy may not be
exported from the United States. Except as provided in paragraphs
(e)(5), (e)(7), (e)(8), and (e)(9) of this section, worked ivory
imported as a sport-hunted trophy may not be exported from the United
States. Parts of a sport-hunted trophy other than ivory may be exported
from the United States without a threatened species permit issued under
Sec. 17.32, provided the requirements of 50 CFR parts 13, 14, and 23
have been met.
(7) Import/export of ivory for law enforcement purposes. Raw or
worked ivory may be imported into and worked ivory may be exported from
the United States by an employee or agent of a Federal, State, or
tribal government agency for law enforcement purposes, without a
threatened species permit issued under Sec. 17.32, provided the
requirements of 50 CFR parts 13, 14, and 23 have been met. It is
unlawful to sell or offer for sale in interstate or foreign commerce
and to deliver, receive, carry, transport, or ship in interstate or
foreign commerce and in the course of a commercial activity any African
elephant ivory that was imported into or exported from the United
States for law enforcement purposes. The exception in paragraph

[[Page 36419]]

(e)(3) of this section regarding manufactured or handcrafted items
containing de minimis quantities of ivory does not apply to ivory
imported or exported under this paragraph (e)(7) for law enforcement
purposes.
(8) Import/export of ivory for genuine scientific purposes. (i) Raw
or worked ivory may be imported into and worked ivory may be exported
from the United States for genuine scientific purposes that will
contribute to the conservation of the African elephant, provided:
(A) It is accompanied by a threatened species permit issued under
Sec. 17.32; and
(B) The requirements of 50 CFR parts 13, 14, and 23 have been met.
(ii) It is unlawful to sell or offer for sale in interstate or
foreign commerce and to deliver, receive, carry, transport, or ship in
interstate or foreign commerce and in the course of a commercial
activity any African elephant ivory that was imported into or exported
from the United States for genuine scientific purposes. The exception
in paragraph (e)(3) of this section regarding manufactured or
handcrafted items containing de minimis quantities of ivory does not
apply to ivory imported or exported under this paragraph (e)(8) for
genuine scientific purposes.
(9) Antique ivory. Antiques (as defined in paragraph (e)(1) of this
section) are not subject to the provisions of this rule. Antiques
containing or consisting of ivory may, therefore, be imported into or
exported from the United States without a threatened species permit
issued under Sec. 17.32, provided the requirements of 50 CFR parts 13,
14, and 23 have been met. Nevertheless, nothing in this rule interprets
or changes any provisions or prohibitions that may apply under the
African Elephant Conservation Act (16 U.S.C. 4201 et seq.), regardless
of the age of the item. Antiques that consist of or contain raw or
worked ivory may similarly be sold or offered for sale in interstate or
foreign commerce and delivered, received, carried, transported, or
shipped in interstate or foreign commerce in the course of a commercial
activity without a threatened species permit issued under Sec. 17.32.
* * * * *

Dated: May 27, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-13173 Filed 6-3-16; 8:45 am]
BILLING CODE 4333-15-P