[Federal Register Volume 87, Number 221 (Thursday, November 17, 2022)]
[Proposed Rules]
[Pages 68975-68995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25010]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-IA-2021-0099; FXIA16710900000-223-FF09A30000]
RIN 1018-BG66


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or FWS), 
propose to revise the rule for the African elephant (Loxodonta 
africana) promulgated under section 4(d) of the Endangered Species Act 
of 1973, as amended (ESA). The intended purposes are threefold: To 
increase protection for African elephants in light of the recent rise 
in international trade of live African elephants by establishing ESA 
enhancement permit requirements for international trade in live 
elephants and specific enhancement requirements for the import of wild-
sourced elephants, as well as requirements to ensure that proposed 
recipients of live African elephants are suitably equipped to house and 
care for them; to clarify the existing enhancement requirement during 
our evaluation of an application for a permit to import African 
elephant sport-hunted trophies; and to incorporate a Party's 
designation under the Convention on International Trade in Endangered 
Species of Wild Fauna and Flora (CITES) National Legislation Project 
into the decision-making process for the import of live African 
elephants, African elephant sport-hunted trophies, and African elephant 
parts and products other than ivory and sport-hunted trophies. We 
anticipate these measures will affect implementation in foreign 
countries of management measures that enhance African elephant 
conservation.

DATES: We will accept comments on the proposed rule and the draft 
environmental assessment received or postmarked on or before January 
17, 2023. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below), must be received by 11:59 
p.m. eastern time on the closing date.
    Public hearing: On January 5, 2023, we will hold a virtual public 
hearing via ZOOM (https://zoom.us) from 1 p.m. to 4 p.m., Eastern Time.
    Information collection requirements: If you wish to comment on the 
information collection requirements in this proposed rule, please note 
that the Office of Management and Budget (OMB) is required to make a 
decision concerning the collection of information contained in this 
proposed rule between 30 and 60 days after publication of this proposed 
rule in the Federal Register. Therefore, comments should be submitted 
to OMB (see ``Information Collection'' section below under ADDRESSES) 
by January 17, 2023.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-IA-2021-0099, 
which is the docket number for this rulemaking. Then click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, click on the Proposed 
Rules link to locate this document. You may submit a comment by 
clicking on ``Comment.'' Please ensure that you have found the correct 
rulemaking before submitting your comment.
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-HQ-IA-2021-0099, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    (3) By public hearing: Submit during the public hearing, described 
above under DATES.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, below, for more information).
    Document availability: This proposed rule and supporting 
documentation, including the draft environmental assessment and 
economic analysis, are available on https://www.regulations.gov in 
Docket No. FWS-HQ-IA-2021-0099.
    Information collection requirements: Written comments and 
suggestions on

[[Page 68976]]

the information collection requirements should be submitted by the date 
specified above in DATES to www.reginfo.gov/public/do/PRAMain. Find 
this particular information collection by selecting ``Currently under 
Review--Open for Public Comments'' or by using the search function. 
Please provide a copy of your comments to the Service Information 
Collection Clearance Officer, U.S. Fish and Wildlife Service, by email 
to [email protected]; or by mail to 5275 Leesburg Pike, MS: PRB (JAO/
3W), Falls Church, VA 22041-3803. Please reference ``OMB Control Number 
1018-African Elephant'' in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT: Mary Cogliano, Manager, Branch of 
Permits, Division of Management Authority; U.S. Fish and Wildlife 
Service; 5275 Leesburg Pike, MS: IA; Falls Church, VA 22041 (telephone 
(703) 358-2104). Individuals in the United States who are deaf, 
deafblind, hard of hearing, or have a speech disability may dial 711 
(TTY, TDD, or TeleBraille) to access telecommunications relay services. 
Individuals outside the United States should use the relay services 
offered within their country to make international calls to the point-
of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why We Need To Publish a Proposed Rule. When a species is listed as 
threatened, section 4(d) of the Endangered Species Act of 1973, as 
amended (ESA; 16 U.S.C. 1531 et seq.), gives discretion to the 
Secretary of the Interior (Secretary) to issue regulations that the 
Secretary deems necessary and advisable to provide for the conservation 
of such species. In light of the rise in international trade of live 
elephants, particularly of wild-sourced elephants, we have reevaluated 
the provisions of the regulations that were issued under section 4(d) 
of the ESA for the African elephant. We propose to revise the 4(d) rule 
(in part 17 of title 50 of the Code of Federal Regulations at 50 CFR 
17.40(e)) 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. This proposed 4(d) rule 
would remove from 50 CFR 17.40(e)(2) the exception from prohibitions 
for import, export, interstate commerce, and foreign commerce in live 
African elephants, except when a permit can be issued under 50 CFR part 
17. The proposed rule would also establish the standards used to 
evaluate ``enhancement'' under the ESA for the import of wild-sourced 
live African elephants under a new proposed 50 CFR 17.40(e)(10). That 
provision would establish an annual certification requirement for range 
countries that allow for export of live African elephants destined for 
the United States to provide the Service with information about the 
management and status of African elephants in their country.
    This proposed rule would also clarify our evaluation of the 
existing enhancement requirement regarding applications for the import 
of sport-hunted trophies by adding a new provision to 50 CFR 
17.40(e)(6). That provision would establish an annual certification 
requirement for range countries that allow for export of sport-hunted 
trophies destined for the United States to provide the Service with 
information about the management and status of African elephants and 
the hunting programs in their country. This proposal would not change 
the enhancement requirement for the import of sport-hunted trophies 
under the current 4(d) rule but would clarify how that requirement can 
be met.
    The proposed rule would also include incorporating the CITES 
National Legislation Project category designations (see 50 CFR 23.7 and 
http://www.cites.org) into the acceptance of imports under 50 CFR 
17.40(e)(2), (e)(6), and (e)(10) under a new proposed 50 CFR 
17.40(e)(11).

Need for Regulatory Action

    We have reevaluated the provisions of the current 4(d) rule and 
considered other administrative actions in light of the rise in 
international trade of live African elephants. In addition, we have 
received a rulemaking petition under the Administrative Procedure Act 
specifically relating to the import of African elephant sport-hunted 
trophies. The petition is a request to initiate an expedited rulemaking 
to reinstate negative enhancement findings for African elephant sport-
hunted trophies taken in Zimbabwe (Friends of Animals (FOA), received 
May 17, 2021).
    We are responding to the petition and information provided with it 
through the proposed revisions in this document to the 4(d) rule for 
the African elephant.
    In the petition described above, FOA requests the Service to: (1) 
repeal or amend the memorandum dated March 1, 2018, in which the 
Service withdrew certain findings for ESA-listed species taken as 
sport-hunted trophies; (2) reinstate the Enhancement Finding for 
African Elephants Taken as Sport-hunted Trophies in Zimbabwe On or 
After January 1, 2015 (Mar. 26, 2015); and (3) enact an immediate 
moratorium on the importation of African elephant sport-hunted trophies 
from Zimbabwe. Additional information can be found below in Basis for 
Proposed Regulatory Changes; however, in summary, the Service 
previously issued enhancement findings for the import of African 
elephant sport-hunted trophies on a country-by-country basis (i.e., on 
a ``countrywide'' basis). In response to a D.C. Circuit Court opinion, 
Safari Club Int'l v. Zinke, 878 F.3d 316 (D.C. Cir. 2017), on March 1, 
2018, the Service revised its procedure for assessing applications to 
import certain hunted species, including African elephants. We withdrew 
our countrywide enhancement findings for elephants across several 
countries including Zimbabwe and now make findings for trophy imports 
on an application-by-application basis. On June 16, 2020, the D.C. 
Circuit upheld the Service's withdrawal of the countrywide findings and 
implementation of the application-by-application approach in Friends of 
Animals v. Bernhardt, 961 F.3d 1197 (D.C. Cir. 2020).
    This proposed rule clarifies the enhancement criteria for our 
assessment of an application for the import of an African elephant 
sport-hunted trophy. Under the proposed rule, applications will 
continue to be evaluated on an application-by-application basis, but 
the clarified enhancement criteria include the requirement to obtain 
information on the status and management of the African elephant within 
the range country on an annual basis. The clarified enhancement 
criteria will assist the Service in ensuring that any import of an 
African elephant sport-hunted trophy contributes to enhancing the 
conservation of the species and that the import does not contribute to 
the decline in populations of the species.
    Ultimately, under this proposed 4(d) rule, we have determined that 
there is a conservation need to (1) establish permitting requirements 
under the ESA for trade in live African elephants, enhancement 
standards under the ESA for the import of wild-sourced live African 
elephants, and requirements to ensure proposed recipients of live 
African elephants are suitably equipped to house and care for the 
elephants; (2) clarify the enhancement standards for the import of 
African elephant sport-hunted trophies; and (3) incorporate the CITES 
National Legislation Project designations into the requirements for 
certain imports.
    We find it is appropriate for the United States to propose 
requirements

[[Page 68977]]

under the ESA to ensure that activities with live African elephants 
under U.S. jurisdiction contribute to enhancing the conservation of the 
species and that live African elephants are well cared for, so that any 
domestic demand for live African elephants enhances the conservation of 
the species and does not contribute to the decline in populations of 
the species in the wild. In addition, clarifying the enhancement 
requirement for the import of African elephant sport-hunted trophies 
and receiving information from the range countries will enable us to 
ensure that authorized imports contribute to enhancing the conservation 
of the species and do not contribute to the decline in populations of 
the species. Clarifying the enhancement standards for the import of 
African elephant sport-hunted trophies would also increase transparency 
with stakeholders in the decision-making process. In order to support 
U.S. African elephant conservation efforts, we propose to allow certain 
types of imports only from countries that have achieved a Category One 
designation under the CITES National Legislation Project, which is 
accomplished by meeting the basic requirements to implement CITES 
through the Party's adoption of national laws to implement the treaty.

Background

    African elephants are a ``keystone species'' (a species on which 
other species in an ecosystem largely depend, such that if it were 
removed the ecosystem would change drastically) and have a unique role 
in the ecosystem. The species inhabits a wide variety of habitat types, 
such as savannahs, forests, deserts, and grasslands, and can migrate 
long distances, depending upon resource availability. African elephants 
modify habitat through numerous means, such as through bulk processing 
of plant materials, preventing the encroachment of woodlands onto 
grasslands, dispersing seeds, and maintaining waterways, among others. 
As a result of this habitat modification, the species has the potential 
to alter fire regimes, influence the spatial distribution of other 
species, and change species richness. Because of the numerous and often 
complex relationships between African elephants and (1) other African 
elephants, (2) other species on the landscape, and (3) their 
environment, the removal of African elephants from the wild has the 
potential to have large-scale ramifications on the composition and, in 
turn, health of the ecosystem. According to the International Union for 
Conservation of Nature, the principal threat to African elephants has 
been poaching for ivory, but increasingly, development for agriculture, 
coupled with associated human-elephant conflict as suitable elephant 
habitat is gradually reduced.
    The Service has a responsibility to conserve both domestic and 
foreign species, and the ESA makes no distinction between foreign 
species and domestic species in listing species as threatened or 
endangered. The protections of the ESA, including section 9 and 4(d), 
generally apply to both listed foreign species and domestic species, 
and section 8 of the ESA provides authorities for international 
cooperation on foreign species. However, some significant differences 
in the Service's authorities result in differences in our ability to 
affect conservation for foreign and domestic species under the ESA. The 
major differences are that the Service has no regulatory jurisdiction 
over take of a listed species in a foreign country, or of trade in 
listed species outside the United States by persons not subject to the 
jurisdiction of the United States. 50 CFR 17.21. The Service also does 
not designate critical habitat within foreign countries or in other 
areas outside of the jurisdiction of the United States. 50 CFR 
424.12(g). The protections of the ESA through listing are likely to 
have their greatest conservation effect for foreign species with regard 
to regulating trade to, from, through, or within the United States, and 
other activities with foreign species in the United States.
    Accordingly, we find it is necessary and advisable to propose 
requirements under the ESA to ensure that activities with live African 
elephants under U.S. jurisdiction contribute to enhancing the 
conservation of the species, and that live African elephants are well 
cared for, so that any demand for live African elephants in the United 
States enhances the conservation of the species and does not contribute 
to the decline in populations of the species in the wild. We also 
evaluated our current process for making ESA enhancement findings 
related to permit applications requesting the import of sport-hunted 
trophies of African elephants. We considered how our permitting process 
and resulting decisions could be more transparent so that applicants, 
the public, and stakeholders understand the requirements under the ESA. 
In order to clarify and improve this process, we are proposing to add 
new provisions to 50 CFR 17.40(e)(6) and 50 CFR 17.40(e)(10) that would 
establish an annual certification requirement for African elephant 
range countries that export sport-hunted African elephant trophies or 
live, wild-sourced African elephants to the United States to provide 
the Service with information about the management and status of African 
elephants and the hunting programs in their country. This requirement 
and the information from the range countries will be a part of our 
decision-making on applications to permit the import of African 
elephant sport-hunted trophies or live, wild-sourced African elephants. 
It will enable us to ensure that authorized imports contribute to 
enhancing the conservation of the species and that the imports do not 
contribute to the decline in populations of the species.
    Clarifying the enhancement standards and improving this process for 
the import of African elephant sport-hunted trophies or live, wild-
sourced African elephants would also increase transparency with 
stakeholders and more efficient evaluations of applications. This 
proposed change to the 4(d) rule would not have any effect on the 
ability of U.S. citizens to travel to countries that allow hunting of 
African elephants and engage in sport hunting. The import of any 
associated sport-hunted trophy into the United States would continue to 
be regulated and require an enhancement finding and threatened species 
import permit. The proposed measures are also anticipated to support 
development and implementation of effective management measures in 
foreign countries that enhance African elephant conservation.
    Further, we find it necessary to ensure that we allow African 
elephant imports only from countries that have met the basic 
requirement to implement CITES under their national laws. Thus, we 
propose to incorporate a requirement that certain African elephant 
imports, including live elephants, sport-hunted trophies, and parts or 
products other than ivory and sport-hunted trophies, be considered only 
when the country of origin and export or re-export has achieved a 
Category One designation under the CITES National Legislation Project. 
Making this proposed regulatory change would further ensure that 
authorized imports of African elephants are not detrimental to the 
survival of the species.

Regulatory Background

    In the United States, the African elephant is protected under the 
ESA, the African Elephant Conservation Act (AfECA) (16 U.S.C. 4201 et 
seq.), and the Convention on International Trade in Endangered Species 
of Wild Fauna and Flora (CITES or Convention) (27

[[Page 68978]]

U.S.T. 1087), as implemented in the United States through the ESA.
    Endangered Species Act. Under the ESA, species may be listed either 
as ``endangered'' or ``threatened.'' 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. With respect to 
endangered species of fish or wildlife, these include prohibitions on 
import; export; take within the United States, within the territorial 
seas of the United States, or upon the high seas; possession and other 
acts with unlawfully taken specimens; delivery, receipt, carriage, 
transport, or shipment in interstate or foreign commerce, by any means 
whatsoever and in the course of a commercial activity; and sale or 
offer for sale in interstate or foreign commerce of the species and 
their parts and products. It is also unlawful to attempt to commit, to 
solicit another to commit, or to cause to be committed any such 
conduct. However, under certain circumstances, permits may be issued 
that authorize exceptions to prohibited activities.
    Section 4(d) of the ESA contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as he or she 
deems necessary and advisable to provide for the conservation of 
species listed as threatened species. The U.S. Supreme Court has noted 
that statutory language like ``necessary and advisable'' demonstrates a 
large degree of deference to the agency (see Webster v. Doe, 486 U.S. 
592 (1988)). ``Conservation'' is defined in the ESA to mean the use of 
all methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to the ESA are no longer necessary [16 U.S.C. 
1532(3)]. Additionally, the second sentence of section 4(d) of the ESA 
states that the Secretary may by regulation prohibit with respect to 
any threatened species any act prohibited under section 9(a)(1), in the 
case of fish or wildlife, with respect to endangered species. Thus, the 
combination of the two sentences of section 4(d) provides the Secretary 
with wide latitude of discretion to select and promulgate appropriate 
regulations tailored to the specific conservation needs of the 
threatened species. The second sentence grants particularly broad 
discretion when adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the ESA was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to [her] with regard to the permitted activities for those species. 
[She] may, for example, permit taking, but not importation of such 
species, or [she] may choose to forbid both taking and importation but 
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    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 
they 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 enroute 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 the Service to issue a special purpose permit in 
accordance with the provisions of 50 CFR 17.32 to authorize any 
activity otherwise prohibited with regard to the African elephant, upon 
receipt 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 four times, in part in response to 
the population decline of African elephants and the increase in illegal 
trade in elephant ivory, and to more closely align U.S. requirements 
with actions taken by the CITES Parties. On September 20, 1982, the 
Service amended the 4(d) rule for the African elephant (47 FR 31384, 
July 20, 1982) to ease restrictions on domestic activities and to align 
its requirements more closely 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.
    The ESA 4(d) rule for the African elephant was revised on September 
9, 1992 (57 FR 35473, August 10, 1992), following establishment of the 
1989 moratorium under the African Elephant Conservation Act 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 an 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 regulatory 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).
    In response to the alarming rise in poaching to fuel the growing 
illegal trade in ivory, the Service again revised the 4(d) rule on July 
6, 2016 (81 FR 36388, June 6, 2016). The revised rule prohibited the 
import and export of

[[Page 68979]]

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. The revised 
rule amended the exception for import of sport-hunted trophies with an 
enhancement finding by adding a requirement that a threatened species 
import permit be issued under 50 CFR 17.32. The revised rule also 
limited the number of sport-hunted African elephant trophies imported 
into the United States to two per hunter per year. Interstate and 
foreign commerce in African elephant ivory was prohibited 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 revised rule also prohibited take of live 
African elephants in the United States to help ensure that elephants 
held in captivity receive an appropriate standard of care. For example, 
live elephants in the United States cannot be used for sport hunting. 
Killing or otherwise hunting an elephant in the United States would be 
prohibited take. The revised rule did not amend exceptions allowing for 
trade in live African elephants and African elephant parts and products 
other than ivory and sport-hunted trophies. Specifically, under the 
current 4(d) rule, 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 50 CFR 17.32, provided the requirements in 50 CFR parts 13, 14, 
and 23 have been met. Under the current 4(d) rule, 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.
    In summary, under the current provisions of the 4(d) rule, at 50 
CFR 17.40(e), all of the prohibitions and exceptions in 50 CFR 17.31 
(incorporating 50 CFR 17.21) and 17.32 apply to the African elephant, 
with certain exceptions for qualifying activities provided in 50 CFR 
17.40(e)(2) through (e)(9). Other than activities that qualify for an 
exception, the prohibitions make it illegal for any person subject to 
the jurisdiction of the United States to import; export; deliver, 
receive, carry, transport, or ship in interstate or foreign commerce, 
by any means whatsoever and in the course of commercial activity; or 
sell or offer for sale in interstate or foreign commerce any African 
elephant. In addition, it is unlawful to take (which includes harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or 
to attempt any of these) African elephants within the United States or 
on the high seas. It is also illegal to possess, sell, deliver, carry, 
transport, or ship, by any means whatsoever any African elephant that 
has been taken illegally.
    We note that 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.
    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. This limitation is 
specific to the AfECA and does not limit agency authority under the 
ESA.
    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, 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.
    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 a moratorium that banned the import of ivory other than sport-
hunted trophies from both range and intermediary countries (54 FR 
24758).
    Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES). CITES entered into force in 1975 and currently 
has 184 Parties (183 countries and 1 regional economic integration 
organization 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 be authorized only ``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 CITES Appendix in which the species or population is

[[Page 68980]]

included and other factors. CITES documents cannot be issued until 
specific biological and legal findings have been made. U.S. CITES 
implementing regulations are found in 50 CFR part 23. The CITES 
Appendices are found on the CITES website (see www.cites.org; https://cites.org/eng/app/appendices.php; 50 CFR 23.7, 23.91).
    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.
    The current annotation covers the Appendix-II populations of 
Botswana, Namibia, South Africa, and Zimbabwe for the exclusive purpose 
of allowing trade in:
     sport-hunted trophies for noncommercial purposes;
     live animals to appropriate and acceptable destinations, 
as defined in Resolution Conf. 11.20 (Rev. CoP18), for Botswana and 
Zimbabwe and for in situ conservation programs for Namibia and South 
Africa;
     hides;
     hair;
     trade in leather goods for commercial or noncommercial 
purposes for Botswana, Namibia, and South Africa and for noncommercial 
purposes for Zimbabwe;
     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).
    These specimens can be traded under CITES as Appendix II specimens. 
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.
    With regard to live African elephants, as noted above, African 
elephants are included in CITES Appendix I, except for the annotated 
African elephant populations of Botswana, Namibia, South Africa, and 
Zimbabwe that are included in CITES Appendix II. Live African elephants 
exported from Botswana and Zimbabwe under the annotation are for trade 
to ``appropriate and acceptable destinations'' as defined in Resolution 
Conf. 11.20 (Rev. CoP18) on Definition of the term `appropriate and 
acceptable destinations', while live African elephants exported from 
Namibia and South Africa under the annotation are for ``in situ 
conservation programs.'' Under the annotation, all other live African 
elephant specimens from these four populations shall be deemed to be 
specimens of species included in Appendix I, and the trade in them 
shall be regulated accordingly. The annotation reads, in relevant part, 
as follows:
    Populations of Botswana, Namibia, South Africa and Zimbabwe (listed 
in Appendix II):
    For the exclusive purpose of allowing:
* * * * *
    (b) trade in live animals to appropriate and acceptable 
destinations, as defined in Resolution Conf. 11.20 (Rev. CoP18), for 
Botswana and Zimbabwe and for in situ conservation programmes for 
Namibia and South Africa;
* * * * *
    All other specimens shall be deemed to be specimens of species 
included in Appendix I and the trade in them shall be regulated 
accordingly.
    Appendix I specimens require a CITES permit from both the exporting 
and importing countries. In the United States, the Service, as the U.S. 
Management Authority, issues Appendix I import permits if required 
CITES findings are made, including: That the import is not for 
primarily commercial purposes (made by the Management Authority); that 
the import is for purposes that are not detrimental to the survival of 
the species (made by the Scientific Authority); and that the facility 
is suitably equipped to care for and house the specimens to be imported 
(made by the Scientific Authority). Requirements for an import permit 
are found at 50 CFR 23.35. With limited exceptions, an Appendix-I 
specimen may only be used for noncommercial purposes after import, 50 
CFR 23.55. These same requirements would apply to a live African 
elephant specimen from the Appendix II populations if the trade does 
not meet the requirements of the annotation, because the specimen would 
be treated as an Appendix I specimen, and subject to Article III 
requirements.
    Live elephants from Botswana and Zimbabwe traded in accordance with 
the annotation are traded as Appendix II specimens under Article IV 
requirements and require a CITES export permit where the legal 
acquisition and non-detriment findings are made by the exporting 
country. The ``appropriate and acceptable destination'' finding is made 
by the importing country's Scientific Authority in consultation with 
the exporting country. For example, elephants from Botswana or Zimbabwe 
imported into the United States would require prior findings by FWS 
under the ``appropriate and acceptable destination'' annotation to be 
regulated pursuant to the requirements of Article IV as an Appendix II 
specimen. Again, if the requirements of the annotation are not met, the 
specimen is treated as an Appendix-I specimen and subject to Article 
III requirements.
    Live elephants from Namibia and South Africa traded in accordance 
with the annotation are traded as Appendix II specimens under Article 
IV requirements and require a CITES export permit where the legal 
acquisition and non-detriment findings are made by the exporting 
country. Under the annotation, these live elephants may be traded only 
within the native range of the African elephant for ``in-situ 
conservation programs.'' Again,

[[Page 68981]]

if the requirements of the annotation are not met, the specimen is 
traded as an Appendix I specimen and subject to Article III 
requirements. For example, elephants from Namibia or South Africa 
imported into the United States are regulated pursuant to the 
requirements of Article III as an Appendix I specimen. Accordingly, no 
import of an African elephant to the United States can occur without 
either a prior import permit issued by FWS in accordance with Article 
III, or in the case of elephants originating from Zimbabwe or Botswana, 
if FWS has made prior findings under the ``appropriate and acceptable 
destination'' annotation.
    At CITES CoP18, in discussion of the definition of ``appropriate 
and acceptable destinations,'' the Parties adopted amendments to 
Resolution Conf. 11.20 (Rev. CoP18) that would not allow trade in live 
African elephants from Botswana and Zimbabwe outside their native range 
under the annotation, except in an exceptional circumstance (defined in 
the resolution). This amendment is the subject of ongoing discussion in 
CITES.
    The United States, as a Party to CITES, will attend the nineteenth 
regular meeting of the Conference of the Parties to CITES (CoP19) in 
Panama City, Panama, from November 14 through November 25, 2022. We 
announced the provisional agenda for CoP19 and solicited public 
comments on the items on the provisional agenda, which are available at 
https://www.regulations.gov/docket/FWS-HQ-IA-2021-0008.
    CITES National Legislation Project. In accordance with CITES 
Resolution Conf. 8.4 (Rev. CoP15) on National laws for the 
implementation of the Convention, and with oversight from the CITES 
Standing Committee, the CITES Secretariat identifies Parties whose 
domestic measures do not provide them with the authority to:
    (i) Designate at least one Management Authority and one Scientific 
Authority,
    (ii) Prohibit trade in specimens in violation of the Convention,
    (iii) Penalize such trade, or
    (iv) Confiscate specimens illegally traded or possessed.
    All four requirements must be met by the national laws of a Party 
in order for the Party to meet the minimum requirements to implement 
CITES. It is an obligation of each Party under CITES to have national 
legislation in place that meets these requirements in order to engage 
in trade in compliance with CITES (CITES Article VIII(1), IX. See also 
Article II(4)). For example, in the United States, the ESA meets these 
requirements. The Secretariat, under the CITES National Legislation 
Project and in consultation with the concerned Party, analyzes national 
legislation for the four aforementioned requirements and designates 
each Party into one of three categories:
    (1) Category One, defined as legislation that is believed generally 
to meet the requirements for implementation of CITES [all of provisions 
(i)-(iv) in the list above are met];
    (2) Category Two, defined as legislation that is believed generally 
not to meet all of the requirements for the implementation of CITES 
[some of provisions (i)-(iv) in the list above are met]; and
    (3) Category Three, defined as legislation that is believed 
generally not to meet the requirements for the implementation of CITES 
[none of provisions (i)-(iv) in the list above are met].
    The Secretariat maintains a legislative status table, which is 
periodically revised, and includes the category in which each Party's 
legislation is placed and whether the Party has been identified by the 
Standing Committee as requiring attention as a priority. The CITES 
National Legislation Project designations are available with other 
official CITES documents on the CITES Secretariat website (see 50 CFR 
23.7 and https://cites.org/eng/legislation/parties).
    Range countries of the African elephant are currently classified as 
follows:
    Category One: Angola, Cameroon, the Democratic Republic of the 
Congo, Ethiopia, Equatorial Guinea, Guinea-Bissau, Malawi, Namibia, 
Nigeria, Senegal, South Africa, and Zimbabwe;
    Category Two: Benin, Botswana, Burkina Faso, Chad, Republic of the 
Congo, Eritrea, Gabon, Guinea, Kenya, Mali, Mozambique, Sudan, United 
Republic of Tanzania (other than Zanzibar), Togo, and Zambia; and
    Category Three: The Central African Republic, C[ocirc]te d'Ivoire, 
Eswatini, Ghana, Liberia, Niger, Rwanda, Sierra Leone, Somalia, and 
Uganda.
    The Standing Committee has identified the following Parties that 
are also range countries of the African elephant as requiring priority 
attention for review under the National Legislation Project: Botswana, 
Republic of the Congo, Guinea, Kenya, Liberia, Mozambique, Rwanda, 
Somalia, and the United Republic of Tanzania (Zanzibar). As noted 
above, these categories are periodically revised as Parties enact 
CITES-implementing legislation, and therefore each Party in Category 
Two or Three can and is expected to achieve Category One. Additionally, 
the legislation of a Party currently placed in Category One may be 
subject to a revised legislative analysis at any time following 
relevant legislative developments, such as repealing of CITES-
implementing legislation. The Secretariat reports on progress and 
issues are reviewed at regular meetings of the Conference of the 
Parties and the Standing Committee.

Basis for Proposed Regulatory Changes

    Exercising the Secretary's authority under section 4(d), we have 
developed a proposed rule that is designed to address the African 
elephant's conservation needs. We find that this rule satisfies the 
requirement in section 4(d) of the ESA to issue regulations deemed 
necessary and advisable to provide for the conservation of the African 
elephant.
    The Service recognizes that some have suggested the possibility of 
promulgating a ban or moratorium on the import of live African 
elephants, elephant sport-hunted trophies, or parts and products other 
than ivory and sport-hunted trophies, with no permitting exceptions. We 
have not pursued such an option in this proposal, and we note that 
there has not previously been such a ban promulgated under the ESA for 
African elephants or for any other ESA-listed endangered or threatened 
species. For example, although section 9(a)(1)(A) of the ESA and the 
Service's regulations in 50 CFR 17.21 prohibit import or export of any 
endangered wildlife, section 10(a)(1)(A) of the ESA and the Service's 
regulations at 50 CFR 17.22 provide exceptions by permit when certain 
issuance criteria are met. We are unconvinced that a conservation case 
has been made for considering taking such an unprecedented step for a 
threatened species. As referenced above, for an endangered species, all 
imports and exports are prohibited, with the exception of those 
accompanied by section 10(a)(1)(A) permits issued for scientific 
purposes or to enhance the propagation or survival of the species.
    In this proposal, we are not considering a ban on imports of 
threatened African elephants with no permitting exceptions. A ban could 
require institutions exhibiting African elephants to rely on captive 
breeding programs to replenish their stock, which could affect 
opportunities for genetic material exchanges. In addition, since 
elephants may face human-elephant conflict as a result of their impact 
on local agriculture, some amount of culling could continue to occur 
despite a ban, such that banning sport hunting could deprive range 
countries of revenue without necessarily affecting

[[Page 68982]]

the number of animals removed from herds. A proposed ban of this nature 
would conflict with efforts to encourage positive elephant conservation 
efforts by range countries that are engaged in this trade and ensure 
that it is well-managed.
    Rather, our proposed amendments to the 4(d) rule presented below 
are intended to continue to encourage African countries and people 
living with elephants to enhance their survival, and provide incentives 
to take meaningful actions to conserve the species and put much-needed 
revenue back into elephant conservation. Our proposal also ensures that 
we do not allow imports in circumstances where elephants are not well-
managed and better ensures that any live elephants in trade and their 
offspring are well taken care of throughout their lifetimes.

General Provisions

    We propose to revise the 4(d) rule for the African elephant in 50 
CFR 17.40(e) to:
     remove from 50 CFR 17.40(e)(2) the exception from 
prohibitions for import, export, interstate commerce, and foreign 
commerce in live African elephants, except when a permit can be issued 
under 50 CFR part 17;
     establish requirements for the import of live African 
elephants under a new proposed 50 CFR 17.40(e)(10)(i);
     establish the standards used to evaluate ``enhancement'' 
under the ESA for the import of wild-sourced live African elephants 
under a new proposed 50 CFR 17.40(e)(10)(ii), including an annual 
certification requirement for range countries that allow for export of 
live African elephants destined for the United States; and
     require ``suitably equipped to house and care for'' 
findings for permitted transfers after import to ensure live elephants 
are going only to facilities that are suitably equipped to house and 
care for them.
    This proposed rule would also improve and clarify our evaluation of 
the existing enhancement requirement during our evaluation of an 
application for the import of sport-hunted trophies by adding a new 
provision to 50 CFR 17.40(e)(6) that would establish an annual 
certification requirement for range countries that export sport-hunted 
trophies to the United States to provide the Service with information 
about the management and status of African elephants and the hunting 
programs in these countries. The proposed rule would also include 
incorporating the CITES National Legislation Project category 
designations into the acceptance of imports under current 50 CFR 
17.40(e)(2) and (e)(6) and proposed paragraph (e)(10) under a new 
proposed paragraph (e)(11). We explain below the protections that this 
proposed rule would provide to African elephants. Nothing in this 
proposed rule would affect other legal requirements applicable to 
African elephants and their parts and products.

Import of Live Elephants

    As noted above, we propose to establish new requirements for trade 
in live African elephants. Much work regarding trade in live elephants 
under CITES has occurred in recent years and helps to inform this 
proposal. At CoP17 (Johannesburg, 2016), Resolution Conf. 11.20 on 
Definition of the term `appropriate and acceptable destinations' was 
amended, clarifying the definition of ``appropriate and acceptable 
destinations.'' The new language stated that ``where the term 
`appropriate and acceptable destinations' appears in an annotation to 
the listing of a species in Appendix II of the Convention with 
reference to the trade in live animals, this term shall be defined to 
mean destinations where:
    (a) The Scientific Authority of the State of import is satisfied 
that the proposed recipient of a living specimen is suitably equipped 
to house and care for it; and
    (b) The Scientific Authorities of the State of import and the State 
of export are satisfied that the trade would promote in situ 
conservation.
    Also, at CoP17, Decisions 17.178 to 17.180 were adopted on the 
implementation of the definition of the term ``appropriate and 
acceptable destinations'' and Article III, paragraphs 3(b) and 5(b), of 
the Convention regarding findings that recipients of living specimens 
of CITES Appendix I species are suitably equipped to house and care for 
them, with a view to developing recommendations and guidance for 
consideration by the Standing Committee and the 18th meeting of the 
Conference of Parties.
    At the 30th meeting of the Animals Committee (AC30, Geneva, July 
2018), the Committee developed and recommended general nonbinding 
guidance on factors that should be considered when evaluating whether 
the proposed recipient of a living specimen is suitably equipped to 
house and care for it, such as: Climate conditions of the recipient, 
space to display normal behavior, dietary needs, and social well-being 
of the living specimens, among others. This guidance for determining 
whether a proposed recipient of a living specimen is suitably equipped 
to house and care for the specimen was subsequently presented to CITES 
CoP18 in CoP18 Doc. 44.1 and adopted along with Decisions 18.152-
18.156.
    To carry out the work called for in these decisions, the Animals 
Committee established an intersessional working group on appropriate 
and acceptable destinations. The United States was a member of this 
working group. One mandate of the working group was to focus on 
preparing draft nonbinding best practice guidance on how to determine 
whether ``the trade would promote in situ conservation'' in line with 
the provisions of paragraph 2 b) of Resolution Conf. 11.20 (Rev. 
CoP18). Another mandate of the working group was to develop more 
detailed species-specific guidance on how to determine whether the 
proposed recipient is suitably equipped to house and care for living 
specimens of African elephants, building on the guidance adopted at 
CoP18. The Animals Committee concluded this work at the 31st Meeting of 
the Animals Committee, and its recommendations for guidance on these 
issues and suggestions for future work were discussed at the 74th 
meeting of the Standing Committee (SC74) and endorsed for submission to 
and consideration by the Nineteenth Conference of the Parties (CoP19) 
in November 2022 (Panama). The Standing Committee (SC) agreed to submit 
the following to the Nineteenth meeting of the Conference of the 
Parties (CoP19) in November 2022 (Panama): (1) the nonbinding best 
practice guidance on how to determine whether ``the trade would promote 
in situ conservation'' contained in Annex 1 to document SC74 Doc. 50 
with a minor amendment to refer to both the Scientific Authority and 
the Management Authority throughout the guidance, and (2) the 
nonbinding guidance for determining whether a proposed recipient of a 
living specimen of African elephant and/or southern white rhinoceros is 
suitably equipped to house and care for it, contained in Annex 2 to 
document SC74 Doc. 50. The Committee did not propose revisions to 
Resolution Conf. 11.20 (Rev. CoP18) or to any other relevant 
Resolution. After debating concerns raised about the export of live 
African elephants by Namibia and Zimbabwe, including concerns expressed 
by the United States, SC74 noted the concerns and invited Parties to 
propose to the Conference of the Parties a clear legal framework for 
trade in live African elephants.
    In addition, SC74 agreed to propose draft decisions to CoP19 to 
replace Decisions 18.152 to 18.156. If adopted,

[[Page 68983]]

the new decisions would direct an intersessional review process to 
invite feedback on experience with using the guidance contained in 
Notification to the Parties No. 2019/070 on ``Non-binding guidance for 
determining whether a proposed recipient of a living specimen is 
suitably equipped to house and care for it'' as well as the information 
provided on the CITES web page ``Appropriate and acceptable 
destinations.'' The Secretariat would submit a report on this feedback 
to the Animals Committee and the Standing Committee for their 
consideration and recommendations to CoP20, as appropriate.
    The continued work and development of nonbinding best practice 
guidance on how to determine whether ``the trade would promote in situ 
conservation'' is in line with the provisions of paragraph 2 b) of 
Resolution Conf. 11.20 (Rev. CoP18). More detailed species-specific 
guidance on how to determine whether the proposed recipient of a living 
specimen is suitably equipped to house and care for living specimens of 
African elephants will aid Parties in making these complex findings, 
helping to maintain the scientific integrity of CITES. These guidance 
documents will enable CITES Parties to allocate resources more 
effectively and aid in providing needed examples of biological and 
management information.
    In parallel to the efforts described above, at the 69th meeting of 
the Standing Committee (SC69), Burkina Faso and Niger, on behalf of 
several nongovernmental organizations, submitted an Information 
Document (SC69 Inf. 36) on challenges to CITES regulation of the 
international trade in live, wild-caught African elephants. The 
document presented a detailed analysis of information on the legal 
implications, biological impacts, and welfare effects of the trade in 
live African elephants, including case studies. It concluded that, 
emergencies aside, the only recipients that should be regarded as 
``appropriate and acceptable'' for wild-caught African elephants are in 
situ conservation programs or secure areas in the wild within the 
species' natural range. The International Union for Conservation of 
Nature (IUCN) Species Survival Commission African Elephant Specialist 
Group has opposed the removal of African elephants from the wild for 
any captive use for many years. This position was reaffirmed at the 
group's meeting in Pretoria, South Africa, in July 2019.
    The African Elephant Coalition (AEC), representing 30 countries of 
the African elephant range, held a summit in Addis Ababa June 1-3, 
2018. Among the issues discussed concerning protecting elephants was 
the continued international trade of live wild elephants and the 
conditions under which these animals are caught and traded. The AEC 
reaffirmed its position that the only ``appropriate and acceptable'' 
destinations for live wild elephants are in situ conservation programs 
within their wild natural range, and the AEC decided to submit a 
document at the 70th meeting of the Standing Committee (SC70) 
expressing its views and recommendations. At SC70 (Sochi, October 
2018), Burkina Faso and Niger submitted SC70 Doc. 38.3 on ``Definition 
of the term `appropriate and acceptable destinations': trade in live 
elephants.'' In part, this document recommended the Standing Committee 
ask that CoP18 reconsider and take decisions on the particular issues 
connected with trade in live wild elephants, including an option to 
amend Resolution Conf. 11.20 (Rev. CoP17) and include a recommendation 
that the only appropriate and acceptable destinations for live wild 
African elephants are in situ conservation programs within their wild 
natural range, and that the only certain way to promote in situ 
conservation is through in situ conservation programs within their wild 
natural range. The Standing Committee noted the concerns raised in 
document SC70 Doc. 38.3 and did not act on this particular 
recommendation.
    The proposal was again submitted to CoP18 in CoP18 Doc. 44.2, 
proposing that Resolution Conf. 11.20 (Rev. CoP17) be amended to 
stipulate that the only ``appropriate and acceptable destinations'' for 
wild-caught live African elephants was within their natural habitat. As 
explained above, the ``appropriate and acceptable destinations'' 
annotation applies to elephants originating from Botswana or Zimbabwe. 
There was much discussion of this sensitive topic, and, after the 
debate, the Conference of the Parties adopted amendments to the 
resolution with language put forward by the European Union (EU) to 
allow trade outside their natural habitat under ``exceptional 
circumstances.'' This debate is summarized in the official records of 
the meeting at CoP18 Com. I Rec. 2; CoP18 Plen. Rec. 2 (Rev. 2); CoP18 
Plen. Rec. 3 (Rev. 1). The EU explained that its suggested compromise 
was intended to ensure that the export of the live elephants under the 
annotation was conducted in a transparent and inclusive manner until 
the process described in Decisions 18.152-18.156 has been concluded and 
the issue is potentially revisited at the next meeting of the 
Conference of the Parties. After a vote, CoP18 adopted the following 
definition:

``where the term `appropriate and acceptable destinations' appears 
in an annotation to the listing of Loxodonta africana in Appendix II 
of the Convention with reference to the trade in live elephants \1\ 
taken from the wild, this term shall be defined to mean in situ 
conservation programmes or secure areas in the wild, within the 
species' natural and historical range in Africa, except in 
exceptional circumstances where, in consultation with the Animals 
Committee, through its Chair with the support of the Secretariat, 
and in consultation with the IUCN elephant specialist group, it is 
considered that a transfer to ex situ locations will provide 
demonstrable in situ conservation benefits for African elephants, or 
in the case of temporary transfers in emergency situations.''
---------------------------------------------------------------------------

    \1\ Excluding elephants that were in ex situ locations at the 
time of the adoption of this Resolution at the 18th meeting of the 
Conference of the Parties.

    The ambiguity of the language adopted at CoP18 has led to multiple 
interpretations as to its scope and effect, and to date the Parties' 
implementation has not been uniform. The controversial nature of the 
decision also led a number of southern African range states to submit 
communications to the effect that they would not implement these 
amendments to the resolution. The United States opposed and voted 
against the amendments to the resolution in both Committee I and in 
Plenary, advocating for the process on development of guidance under 
Decisions 18.152-18.156 to be completed first, so that science could 
drive decision-making. For the international trade of live elephants 
under CITES, we respect decisions of the Conference of the Parties, and 
through this rulemaking we are proposing to improve our ability to 
regulate U.S. activities with live elephants for the conservation of 
the species, while also providing greater clarity to the public. The 
U.S. Government's understanding of the process established by 
Resolution Conf. 11.20 (Rev. CoP18), paragraph 1, is that, under the 
resolution, the Animals Committee has a consultative role, meaning it 
is given an opportunity to advise the Parties involved (the exporting 
country and the importing country) on whether or not the proposed trade 
meets the exception. In its role, the Animals Committee does not make 
the decision--the Animals Committee's advice does not allow or disallow 
the trade--and the Animals Committee does not need to agree with the 
Parties'

[[Page 68984]]

decision. It is for the Parties concerned to consider any advice 
offered by the Animals Committee and any other relevant information 
that may be available to them and make their own decisions on whether 
or not to allow the trade.
    The relevant criterion for the proposed trade under the exception 
is: ``exceptional circumstances where . . . it is considered that a 
transfer to ex situ locations will provide demonstrable in situ 
conservation benefits for African elephants.'' In the CITES context, ex 
situ means outside the natural range of the species, and in situ means 
inside the natural range of the species. Under the exception, the 
Parties concerned may allow the trade if they both conclude that a 
transfer to an ex situ location will provide demonstrable in situ 
conservation benefits for African elephants, and if the other relevant 
CITES requirements are met. The United States expects that, given the 
different interpretations of the CoP18 amendments to Resolution Conf. 
11.20, this issue may be raised again at CoP19 in November 2022. At 
SC74, it was noted that concerns were raised about the export of live 
African elephants by both Namibia and Zimbabwe, and CITES Parties were 
invited to propose a clear legal framework for trade in live African 
elephants at CoP19.
    This CITES history and activity surrounding the export and import 
of live African elephants from range countries underscores the need for 
the United States to address these issues in our proposed rulemaking, 
and to establish clear regulatory requirements for U.S. activities with 
live elephants to enhance the conservation of African elephants in all 
range countries.
    The total number of records (instances of trade by Parties, each of 
which can document trade in one or more than one specimen) reported in 
the CITES trade database (https://trade.cites.org/) for live African 
elephants of any origin (e.g., sourced from the wild, captive-bred, or 
when the source was unknown) decreased from 2014 through 2019 (46 
records) when compared to 2008 through 2013 (91 records). However, the 
instances of trade reflected in these records can cover multiple 
elephants, and the total number of live African elephants traded in 
these instances increased from 376 to 674. Seventeen were captive bred. 
The subset of these traded live African elephants that were exported 
from a range country (a country that exercises jurisdiction over part 
of the natural geographic range of the African elephant) also increased 
from 103 to 527. The proportion of wild-sourced live elephants traded 
has also increased in the more recent years (from 27 percent to 78 
percent). Moreover, the number of exported or re-exported wild-sourced 
live African elephants between any two Parties increased in the more 
recent years, even when excluding records for reintroduction purposes, 
which included upwards of 70 live elephants per record (262 versus 
151). There has been an increase of approximately 51 percent in the 
international trade of live elephants since 2016. Although the CITES 
Trade Database is incomplete, contains traded elephants of an unknown 
source, and may double-count elephants in instances where trade 
occurred for the same elephant more than once within the allotted 
timeframe, the available trade data demonstrates that live African 
elephants, particularly wild-sourced elephants, are being traded in 
higher numbers in recent years.
    The Service is also aware of a recent auction of live elephants in 
2020-2021 by the Ministry of Environment Forestry and Tourism of 
Namibia in order to generate funds for wildlife conservation and to 
mitigate human-elephant conflict. The auction advertised the sale of 
170 live elephants and ultimately sold 57. Fifteen of those elephants 
sold were moved to a private reserve in Namibia and will remain there. 
Thirteen elephants were sold to the United Arab Emirates; of which four 
are at Sharjah Safari Park, and nine elephants are at Al-Ain Zoo. At 
this time, 20 elephants are still to be taken from the wild, and their 
ultimate destination is not yet publicly known.
    We propose to amend the current 4(d) rule to remove from 50 CFR 
17.40(e)(2) the exception from prohibitions for import, export, 
interstate commerce, and foreign commerce in live African elephants, 
except when a permit can be issued under 50 CFR part 17. We consider 
the specific elements of the elephant(s) to be imported from the 
applications once received. We also propose to establish the standards 
used to evaluate ``enhancement'' under the ESA for the import of wild-
sourced live African elephants under 50 CFR 17.40(e)(10). Specifically, 
we are proposing that an enhancement determination for import of wild-
sourced live African elephants will require prior receipt of properly 
documented and verifiable annual certification provided by the 
government of the range country to the Service that:
    (A) African elephant populations in the range country are stable or 
increasing, as well as sufficiently large to sustain removal of live 
elephants at the level authorized by the country;
    (B) Regulating authorities have the capacity to obtain sound data 
on these populations using scientifically-based methods consistent with 
peer-reviewed literature;
    (C) Regulating authorities recognize these populations as a 
valuable resource and have the legal and practical capacity to manage 
them for their conservation;
    (D) regulating governments follow the rule of law concerning 
African elephant conservation and management;
    (E) The current viable habitat of these populations is secure and 
is not decreasing or degrading;
    (F) Regulating authorities can ensure that the involved live 
animals have in fact been legally taken from the specified populations, 
and family units were kept intact to the maximum extent practicable;
    (G) Regulating authorities can ensure that no live African 
elephants to be imported are pregnant;
    (H) Funds derived from the import are applied primarily to African 
elephant conservation, including reporting on how those funds have been 
or will be used for African elephant conservation activities; and
    (I) The elephants have been considered for in situ conservation 
programs, and consideration has been given to moving elephants to 
augment extant wild populations or reintroduce to extirpated ranges.
    Note that the proposed rule text contains a proposed list of 
factors, including the reporting of funds to be spent towards 
conservation of the species. The Service invites public comments on 
that list as well as on how to more generally ensure that funds derived 
from the import are applied primarily to African elephant conservation.
    We note that our proposal would apply to import of live African 
elephants from all countries of origin, regardless of country of export 
or re-export and, therefore, would require import permits for African 
elephants from both Appendix I and Appendix II populations. The country 
of origin/country of export is the country where the animal is taken 
from the wild or bred in captivity. Under section 9(c)(2) (16 U.S.C. 
1538(c)(2)) and our regulations at 50 CFR 17.8, the ESA provides a 
limited exemption for the import of some threatened species. 
Importation of threatened species that are also listed under CITES 
Appendix II are presumed not to be in violation of the ESA if the 
importation is not made in the course of a commercial activity, all 
CITES requirements have been met, and all general wildlife import

[[Page 68985]]

requirements under 50 CFR part 14 have been met. This presumption can 
be overcome, however, through issuance of a 4(d) rule requiring ESA 
authorization prior to import, which rebuts the presumptive legality of 
otherwise qualifying imports (see Safari Club Int'l v. Zinke, 878 F.3d 
316, 328-29 (D.C. Cir. 2017)). For example, the Service retained the 
requirement for ESA enhancement findings prior to the import of sport-
hunted trophies in 1997 and 2000, when the four populations of African 
elephants were transferred from CITES Appendix I to CITES Appendix II 
subject to an annotation. We amended the African elephant 4(d) rule in 
2014 and 2016 and again maintained the requirement for an ESA 
enhancement finding prior to allowing the import of African elephant 
sport-hunted trophies. As the D.C. Circuit held in Safari Club, 
``[s]ection 9(c)(2) in no way constrains the Service's section 4(d) 
authority to condition the importation of threatened Appendix II 
species on an affirmative enhancement finding. Under section 4(d) of 
the ESA, the Service `shall issue such regulations as [it] deems 
necessary and advisable to provide for the conservation of [threatened] 
species' and may `prohibit with respect to any threatened species any 
act prohibited . . . with respect to endangered species.' 16 U.S.C. 
1533(d). Because the Service may generally bar imports of endangered 
species, see id. Sec.  1538(a)(1)(A), it may do the same with respect 
to threatened species under section 4(d), see id. Sec.  1533(d).'' The 
D.C. Circuit went on to explain that ``promulgation of a blanket ban 
would be permissible and rebut the presumptive legality of elephant 
imports. If the Service has the authority to completely ban imports of 
African elephants by regulation under section 4(d), it logically 
follows that it has authority to allow imports subject to reasonable 
conditions, as provided in the [4(d) rule for African elephants].''
    African elephant range states are increasingly interested in 
selling live African elephants as a means to reduce overpopulation of 
some elephants in some areas and to generate revenue. Accordingly, in 
order to effectively implement the ESA, the United States must have 
sufficient regulatory safeguards in place to ensure that the United 
States is not a demand country for illegal or unsustainable African 
elephant trade. Further, if the United States is a destination for 
trade in live African elephants, then we need to ensure that the trade 
is not only legal and sustainable, but also enhances the survival of 
the species in the wild, including by ensuring that revenue generated 
by the trade is going back into elephant conservation to address human-
elephant conflict, habitat loss, poaching, and other threats to the 
survival of African elephants.
    Our proposal to require an enhancement finding for the issuance of 
threatened species permits under 50 CFR 17.32 for the import and export 
of any live African elephant would enhance the species' conservation 
and survival by allowing us to more carefully evaluate all live African 
elephant imports and exports consistently in accordance with legal 
standards and the conservation needs of the species. Additionally, 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 for imports of all elephants from all populations. Examples of 
such standards include 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 and export of live African 
elephants is warranted.

Care of Live Elephants After Import and Other Permitted Transfers

    As explained previously, the Division of Scientific Authority (DSA) 
evaluates facilities importing African elephants to determine if the 
facility is suitably equipped to house and care for the live elephants 
to be imported. These ``suitably equipped to house and care for'' 
findings for live specimens are made in accordance with the criteria 
and requirements in our CITES implementing regulations at 50 CFR 23.65. 
Currently, the known total of live African elephants (Loxodonta 
africana) in the United States is 146. The Service does not currently 
regulate or maintain data on the number and location of captive-held 
African elephants once within the United States. All data are from a 
voluntary database submitted by zoos (Species360 Zoological Information 
Management System (ZIMS), 2021). Elephant sanctuaries and other 
elephant-holding institutions including zoos may exist in the United 
States but not participate in Species360 and are, therefore, not listed 
in this database. As a result, the reported number of 146 elephants is 
a minimum number.
    These 146 elephants are located across 33 institutions. This 
captive population consists of 33 males and 113 females with 1 birth in 
the last 12 months (Species360 ZIMS, 2021). In recent years, from 2013 
to 2019, the United States imported 23 live elephants (LEMIS database). 
The Service concludes there is a need to provide oversight of such 
transfers to ensure live elephants are going only to facilities that 
are suitably equipped to house and care for them. Such oversight would 
help ensure the conservation and long-term survival of elephants in the 
United States, thereby helping reduce the pressure on elephants from 
the wild and increasing the long-term conservation and survival of 
elephants in the wild.
    In addition, many of the elephants imported into the United States 
may not remain in the initial facility that has been determined to be 
suitably equipped to care for and house the animal(s). These animals 
and their offspring may be moved for breeding purposes, public display, 
space requirements, or other reasons. Currently, once these animals 
have been imported, the Service does not evaluate the facilities to 
which they or their offspring are being moved and receives no assurance 
that the facilities can adequately house and care for the animals they 
are receiving. Additionally, in Resolution Conf. 11.20 (Rev. CoP18), 
the CITES Conference of the Parties recommends that all Parties have in 
place legislative, regulatory, enforcement, or other measures to: 
Prevent illegal and detrimental trade in live elephants; minimize the 
risk of negative impacts on wild populations and injury, damage to 
health, or cruel treatment of live elephants in trade; and promote the 
social well-being of these animals. These recommendations were first 
adopted at CoP17 and then revised at CoP18, CITES meetings that took 
place subsequent to our finalization of amendments to the 4(d) rule for 
African elephants in 2016, and present new reasons to reconsider our 
domestic regulation of live African elephants under the ESA.
    In furtherance of these CITES recommendations and to enhance the 
conservation of African elephants, we propose to address these gaps in 
our domestic regulation of live African elephants by requiring that 
live African elephants may be sold or offered for sale in interstate 
commerce and delivered, received, carried, transported, or shipped in 
interstate commerce in the course of a commercial activity only if

[[Page 68986]]

authorized by a special purpose permit issued under 50 CFR 17.32. 
Entirely intrastate sale or transfer of African elephants already in 
the United States is regulated by State law, and in some cases subject 
to a permit condition and CITES use after import requirements, 50 CFR 
23.55. We also propose that each permit issued by the Service for a 
live African elephant will include a condition that the elephant and 
its offspring will not be sold or otherwise transferred to another 
person unless authorized by a special purpose permit issued under 50 
CFR 17.32. Each special purpose permit issued for a live African 
elephant will require a finding that the proposed recipient is suitably 
equipped to house and care for the live elephant. The evaluation would 
consider the same criteria and requirements found in 50 CFR 23.65 and 
applied during import of a live African elephant. These criteria 
include considering the following factors found in 50 CFR 23.65(c) in 
evaluating suitable housing and care for wildlife:
    (1) Enclosures constructed and maintained so as to provide 
sufficient space to allow each animal to make normal postural and 
social adjustments with adequate freedom of movement. Inadequate space 
may be indicated by evidence of malnutrition, poor condition, debility, 
stress, or abnormal behavior patterns.
    (2) Appropriate forms of environmental enrichment, such as nesting 
material, perches, climbing apparatus, ground substrate, or other 
species-specific materials or objects.
    (3) If the wildlife is on public display, an off-exhibit area, 
consisting of indoor and outdoor accommodations, as appropriate, that 
can house the wildlife on a long-term basis if necessary.
    (4) Provision of water and nutritious food of a nature and in a way 
that is appropriate for the species.
    (5) Staff who are trained and experienced in providing proper daily 
care and maintenance for the species being imported or introduced from 
the sea, or for a closely related species.
    (6) Readily available veterinary care or veterinary staff 
experienced with the species or a closely related species, including 
emergency care.
    In addition to the wildlife-specific provisions in 50 CFR 23.65(c), 
we also consider the following general factors in evaluating suitable 
housing and care for a live specimen found in 50 CFR 23.65(e):
    (1) Adequate enclosures or holding areas to prevent escape or 
unplanned exchange of genetic material with specimens of the same or 
different species outside the facility.
    (2) Appropriate security to prevent theft of specimens and measures 
taken to rectify any previous theft or security problem.
    (3) A reasonable survival rate of specimens of the same species or, 
alternatively, closely related species at the facility, mortalities for 
the previous 3 years, significant injuries to wildlife or damage to 
plants, occurrence of significant disease outbreaks during the previous 
3 years, and measures taken to prevent similar mortalities, injuries, 
damage, or diseases. Significant injuries, damage, or disease outbreaks 
are those that are permanently debilitating or reoccurring.
    (4) Sufficient funding on a long-term basis to cover the cost of 
maintaining the facility and the specimens imported.
    Together, these proposed permitting requirements for any person 
subject to the jurisdiction of the United States that engages in 
activities with live African elephants are necessary and advisable to 
provide for the conservation of the species because they would help 
prevent illegal and detrimental trade in live elephants; to minimize 
the risk of negative impacts on wild populations and avoid injury, 
damage to health, or cruel treatment of live elephants in trade; and 
promote the social well-being of these animals, as recommended by the 
CITES Conference of the Parties. As part of our CITES findings we 
examine the facilities where the live elephants are proposed to be 
imported to address whether the facilities are suitably equipped to 
house and care for live elephants, and for other transfers covered 
under this proposal we would also examine the facilities where live 
elephants are proposed to be transferred. U.S. facilities that have 
previously been authorized to import live elephants under CITES have 
been in compliance with these requirements. The Service expects that 
any facility wishing to be transferred a live elephant would be in 
compliance with these standards. For any facility that is in compliance 
with these standards, these new permitting requirements would impose a 
small recordkeeping and fee burden on these facilities and would ensure 
that any subsequent transfer of the live elephant or its offspring from 
these facilities is also only to facilities that are suitably equipped 
to house and care for live elephants.

Import of Personally Sport-Hunted Trophies

    Trophy hunting can generate funds to be used for conservation, 
including for habitat protection, population monitoring, wildlife 
management programs, mitigation efforts for human-wildlife conflict, 
and law enforcement efforts. The IUCN Guiding Principles on Trophy 
Hunting as a Tool for Creating Conservation Incentives (Ver.1.0, August 
2012) note 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, 
the IUCN recognizes 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. The ESA 
enhancement standards that we are describing in this proposed rule are 
consistent with this IUCN guidance and are necessary and advisable to 
ensure that trophies authorized for import into the United States are 
only from well-managed hunting. Not all trophy hunting is part of a 
well-managed or well-run program, and we evaluate import of sport-
hunted trophies carefully to ensure that all CITES and ESA requirements 
are met. Where the applicant has not met their burden to provide 
sufficient information for the Service to make its findings, including 
sufficient information to demonstrate that the trophy to be imported is 
from well-managed hunting, the import would not meet the criteria for 
an enhancement finding, and, consistent with both the current 
regulation and this proposal, cannot and would not be authorized for 
import into the United States. Under this proposed rule, we would 
continue to carefully evaluate African elephant trophy import 
applications in accordance with legal standards and the conservation 
needs of the species.
    Under the current 4(d) rule for the African elephant, issuance of 
an ESA threatened species permit to import a sport-hunted trophy of an 
African elephant first requires that the Service determine that the 
killing of the trophy animal would enhance the survival of the species 
(known as an ``enhancement finding''). We evaluated our current process 
for making ESA enhancement findings related to permit applications 
requesting the import of sport-hunted trophies of African elephants. We 
reviewed information within our permit application files related to the

[[Page 68987]]

investment of hunting fees that go into the conservation of these 
species and how they improve local communities and contribute to 
survival and recovery of elephant populations. We also evaluated how 
the Service's technical assistance to elephant range countries supports 
local communities and contributes to sustainable elephant populations. 
Additionally, we considered how we could improve our permitting process 
and resulting decisions to ensure that they are consistent with the 
purpose and intent of the ESA and, as a result, that permits we issue 
enhance the survival of the species in the wild.
    In making ESA enhancement findings, we review all relevant 
information available to us, including information submitted with the 
individual permit applications, information received in response to 
inquiries we make of the range country, and all other reliable 
information we receive from interested parties, such as species 
experts, hunting organizations, community groups, and nongovernmental 
organizations. For decades, the Service periodically issued enhancement 
findings for the import of African elephant sport-hunted trophies on a 
country-by-country (or ``countrywide'') basis, based on the scientific 
and management information available to the Service. In response to a 
D.C. Circuit Court opinion, Safari Club Int'l v. Zinke, 878 F.3d 316 
(D.C. Cir. 2017), on March 1, 2018, the Service revised its procedure 
for assessing applications to import certain hunted species, including 
African elephants. We withdrew our countrywide enhancement findings for 
elephants across several countries including Zimbabwe, Tanzania, South 
Africa, Botswana, Namibia, and Zambia. We now make findings for trophy 
imports on an application-by-application basis. On June 16, 2020, the 
D.C. Circuit upheld the Service's withdrawal of the countrywide 
findings and use of the application-by-application approach in Friends 
of Animals v. Bernhardt, 961 F.3d 1197 (D.C. Cir. 2020).
    The application-by-application process involves additional 
information requirements, time, and staff resources to complete the 
review of each application. We used to rely only on information 
concerning the national-level management of a species to produce a 
single enhancement finding for all permit applications specific to a 
species, country, and time period. We now make enhancement findings for 
every individual permit application, considering not only national-
level species management but also species management on a smaller scale 
(e.g., on a regional or concession/conservancy-area basis), as well as 
information about each hunter's individual circumstances, such as the 
specific hunting dates and locations.

Factors Considered by the Service

    In our individual application reviews and enhancement assessments 
for range countries, we consider factors that can contribute to African 
elephant conservation by improving the management and status of African 
elephants in the wild, including:
     Establishing and using science-based sustainable quotas, 
including use of a sex- and age-based harvest system;
     Investing hunting fees into conservation (e.g., anti-
poaching, managing human-wildlife conflict, population monitoring, 
community benefits that provide incentives for conservation of the 
species in the wild, etc.);
     Implementing and enforcing, and compliance with, wildlife 
laws and regulations;
     Implementing management plans and use of adaptive 
management;
     Implementing an effective anti-poaching program;
     Implementing measures to reduce human-wildlife conflict;
     Monitoring populations of the hunted species and their 
food source; and
     Protecting and improving the habitat of the hunted species 
(e.g., creating water holes, habitat management, etc.).

Additional Considerations

    In our analysis, we consider the available information on:
    (1) Whether the range country of the hunt has regulations, 
infrastructure, and standard processes in place to ensure an effective 
transfer of hunting revenues back into conservation of the species;
    (2) Whether the range country has effective governance and strong 
compliance and enforcement measures, particularly with regard to their 
ability to implement the wildlife management regulations developed for 
the hunted species;
    (3) Whether the hunting operator is in compliance with the range 
country's regulatory requirements;
    (4) Whether the hunting property owner, concessionaire, and/or 
community are effectively investing the revenue to elicit community 
incentives for protection of the species; and
    (5) Whether the hunter is in compliance with the hunting laws, 
regulations, and operator requirements.
    An evaluation of these factors allows the Service to assess how the 
range-country government manages the hunted species and how hunting 
serves to enhance the survival of the species in the context of the 
management system; how hunting serves to enhance the survival of the 
species in the context of the management unit at the hunting-operator, 
concessionaire, conservancy, or private-reserve level; and how the 
individual hunter has contributed (where the hunt has already taken 
place) or will contribute (where the hunt has not yet taken place) to 
enhancement of survival of that species through their hunting 
activities and any associated contributions to the survival of the 
species. Our process for making enhancement findings encourages 
conservation investments and sustainability of elephant populations. We 
evaluate not only national conservation efforts, but also how the 
hunting operator for the applicant's hunt works to address threats to 
the hunted species (e.g., making habitat improvements, conducting anti-
poaching and other activities, etc.).
    The Service's ESA enhancement evaluation includes an analysis of 
whether the revenue generated through hunting fees is used to support 
conservation of the species. It is the responsibility of the entity 
that collects the hunting fees to reinvest those funds back into 
conservation of the species, including addressing threats to the 
species that are specific to that area or elephant population. For 
example, if an agency of the range country's government collects 
hunting fees, then we would expect the government to have standard 
processes and infrastructure in place to ensure an effective transfer 
of hunting revenues back into the country's management of the species. 
If a smaller management unit such as an operator, private property 
owner, or conservancy is responsible for collecting hunting fees, then 
we would expect a portion of those fees to be reinvested into 
conservation of the hunted species. The Service invites public comments 
on how to ensure an effective transfer of hunting revenues back into 
conservation of the species, including the kinds of regulations, 
infrastructure, or standard processes the range country of the hunt 
should have in place to ensure that hunting revenues add to and do not 
simply substitute for other existing funding for conservation.
    When practicable, the Service conducts site visits or other 
outreach during which we engage with the national, provincial, and 
regional governments, as well as communities, to establish whether 
activities are achieving enhancement of the species.

[[Page 68988]]

The Service also provides assistance to range countries to explain U.S. 
requirements for import of personal sport-hunted African elephant 
trophies and supports capacity-building in range countries. The 
Service's complementary approach to leveraging conservation of 
elephants through both its ESA regulatory permitting requirement of 
enhancement of the species, combined with our technical assistance to 
support capacity-building in range countries, effectively contributes 
to creating incentives for local communities to protect elephant 
populations and sustaining elephant populations within the range 
country.
    By considering whether the revenues from elephant hunts are 
effectively reinvested in conservation programs for the species and 
community benefits, we are able to determine whether these targeted 
investments improve the survival of elephants and improve local 
communities that are working to conserve the species. It can be 
challenging to obtain the information for a robust analysis, which 
involves consultation with the range country and often with those 
involved in various aspects of the hunt, a process that requires a 
great deal of staff time and other resources. In sum, enhancement 
findings can be an effective tool for conservation, as trophy hunters 
are able to help conserve elephant populations and their habitats and 
provide protection incentives to communities that live alongside these 
species by complying with our enhancement requirements.
    Historically, the Service has issued enhancement findings for 
Loxodonta africana on a countrywide basis, as was the practice for a 
number of other threatened sport-hunted species. On March 1, 2018, 
however, in response to a D.C. Circuit Court opinion (Safari Club Int'l 
v. Zinke, 878 F.3d 316 (D.C. Cir. 2017)), the Service withdrew its 
countrywide enhancement findings for a range of species, including 
African elephants, across several countries, and began assessing 
applications to import sport-hunted trophies of these species on an 
application-by-application basis. These withdrawals were upheld in a 
D.C. Circuit Court opinion (Friends of Animals v. Bernhardt, No. 19-
5147 (D.C. Cir. June 16, 2020); Center for Biological Diversity v. 
Bernhardt, No. 19-5152 (D.C. Cir. June 16, 2020)). No countrywide ESA 
enhancement findings are currently in effect. Therefore, since March 1, 
2018, the Service has been making ESA enhancement findings to support 
permitting decisions on the import of sport-hunted trophies of African 
elephants on an application-by-application basis, ensuring consistent 
application of the regulatory criteria across all permit application 
adjudications and ensuring that each permit decision is based on the 
best scientific and management information available. As a matter of 
policy, the Service continues to have the option of issuing countrywide 
enhancement findings through a rule-making process; however, to date, 
the Service has not chosen this option due to the challenges of keeping 
the findings current in light of a lengthy rule-making process.

Annual Certification for Range Countries

    To clarify and improve this process, we are proposing adding to 50 
CFR 17.40(e)(6) a new provision that would establish an annual 
certification requirement for range countries that export sport-hunted 
trophies destined for the United States to provide the Service with 
information about the management and status of African elephants and 
the hunting programs in their country. This requirement and the 
information from the range countries will enable us to ensure that 
authorized imports contribute to enhancing the conservation of the 
species and do not contribute to the decline in populations of the 
species. In addition, any quotas set by range countries for sport-
hunted trophies are typically established on an annual basis. Reviewing 
information on an annual basis will allow for monitoring of these 
yearly quotas and the ability to evaluate adaptive management 
approaches in meaningful timeframes.
    Clarifying the enhancement standards and improving this process for 
the import of African elephant sport-hunted trophies would also 
increase transparency with stakeholders and more efficient evaluations 
of applications. Although findings for the import of African elephant 
sport-hunted trophies will continue to be made under an application-by-
application basis, application evaluations can be more efficient under 
the revised proposed rule because nationwide management information for 
the species must be provided on an annual basis by the range country. 
This proposed change to the 4(d) rule would not have any effect on the 
ability of U.S. citizens to travel to countries that allow hunting of 
African elephants and engage in sport hunting. Additionally, the import 
of any associated sport-hunted trophy into the United States would 
continue to be regulated and require an enhancement finding and 
threatened species import permit. We are proposing that an enhancement 
determination for African elephant sport-hunted trophies under 50 CFR 
17.40(e)(6)(i)(B) and 50 CFR 17.32 will require prior receipt of 
properly documented and verifiable certification provided by the 
government of the range country to the Service on an annual basis that:
    (A) African elephant populations in the range country are stable or 
increasing, as well as sufficiently large to sustain sport hunting at 
the level authorized by the country;
    (B) Regulating authorities have the capacity to obtain sound data 
on these populations using scientifically based methods consistent with 
peer-reviewed literature;
    (C) Regulating authorities recognize these populations as a 
valuable resource and have the legal and practical capacity to manage 
them for their conservation;
    (D) Regulating governments follow the rule of law concerning 
African elephant conservation and management;
    (E) The current viable habitat of these populations is secure and 
is not decreasing or degrading;
    (F) Regulating authorities can ensure that the involved trophies 
have in fact been legally taken from the specified populations; and
    (G) Funds derived from the involved sport hunting are applied 
primarily to African elephant conservation, including reporting on how 
those funds have been or will be utilized for African elephant 
conservation activities.
    The Service will consider these factors as part of the 
determination if the import of an African elephant sport-hunted trophy 
meets the enhancement standard. We welcome comment on whether these 
factors are appropriate and whether others should be added. We note 
that the proposed rule text includes a reporting of funds to be spent 
towards conservation of the species. The Service invites public 
comments on that report as well as on how to more generally ensure that 
funds derived from the import are applied primarily to African elephant 
conservation.
    Under the proposed 4(d) rule, we will continue to require an ESA 
enhancement finding and issuance of a threatened species permit for 
import of each African elephant sport-hunted trophy, which will 
continue to allow us to carefully evaluate each trophy import in 
accordance with legal standards and the conservation needs of the 
species.

Elephant Imports and the CITES National Legislation Project

    The provisions of CITES and the ESA and their respective 
requirements for the issuance of permits for African elephants are 
distinct and

[[Page 68989]]

complementary in furthering African elephant conservation. While the 
United States, alone, implements the ESA, CITES is implemented by the 
United States and other national governments. The ability of each Party 
to fully implement CITES underpins international efforts to conserve 
and enhance African elephant conservation. For U.S. African elephant 
conservation efforts to be successful, it is imperative that other 
Parties have national legislation in place that meets the basic 
requirements to implement CITES. We therefore propose to amend the 
current 4(d) rule to make each exception to the prohibition on import 
in the 4(d) rule that applies to live African elephants, African 
elephant sport-hunted trophies, and African elephant parts and products 
other than ivory and sport-hunted trophies, contingent on being 
accompanied by a valid CITES document issued by the Management 
Authority of a Party with a CITES Category One designation under the 
CITES National Legislation Project (50 CFR 23.7; http://www.cites.org). 
We will thereby prohibit these imports from any Party that does not 
meet the basic requirements to implement CITES, and at the same time 
encourage CITES Parties to amend their national legislation to achieve 
a CITES Category One designation.
    The United States is a strong proponent of the National Legislation 
Project, and has provided assistance to countries to help them achieve 
Category One. For example, in recent years the legislation of Angola 
and Jordan has been placed in Category One. The United States provided 
support to Angola and Jordan in their efforts toward these 
achievements. This provision is designed to have decreasing effect over 
time, and to ensure countries that wish to trade in African elephants 
with the United States enact and continue to maintain Category One 
national legislation as a Party to CITES. The CITES National 
Legislation Project is designed to encourage and assist every Party to 
achieve Category One designation. When each country achieves CITES 
Category One designation, by enacting sufficient national legislation 
to meet the basic requirements of CITES, as required of each Party 
under the Convention, then this provision will have no effect with 
regard to that country. For countries that have already achieved 
Category One, this provision will have no effect, so long as the 
country remains a Party to CITES and maintains Category One national 
legislation.

Proposed Regulatory Changes

    The rule portion of this document sets forth the new regulatory 
provisions that we are proposing to add to 50 CFR 17.40(e). For reasons 
explained below, the rule text also includes some current regulatory 
text that we are not proposing to change. We are accepting public 
comments on only the proposed new regulatory text in this document, and 
on paragraph (e)(2) as described in the draft environmental assessment 
(see the National Environmental Policy Act section below in the 
preamble), and not on any other current regulatory provisions in 
paragraph (e).
    In paragraph (e)(1), which sets forth definitions used in the 
regulations in paragraph (e), we propose to add a definition for 
``range country.'' We also propose to reformat the paragraph so that it 
follows current style requirements for the Code of Federal Regulations. 
As such, we are proposing to divide the current single paragraph into 
an indented list, and we have set forth the proposed new term and 
definition in alphabetic order in a list of the current terms and 
definitions. However, we are proposing no changes to the current terms 
and definitions in that paragraph.
    In paragraph (e)(2), we are proposing to remove both references, 
which appear in the paragraph heading and the first sentence, to live 
African elephants because we are proposing regulatory provisions 
regarding live African elephants in a new paragraph (e)(10) as 
described below.
    The primary new regulatory provisions that we are proposing, as 
described earlier in this document, are as follows: In a new paragraph 
(e)(6)(ii), we are proposing regulations pertaining to making 
enhancement determinations that are required by the current 4(d) rule 
for the importation of African elephant sport-hunted trophies. In a new 
paragraph (e)(10), we are proposing regulatory provisions regarding 
activities with live African elephants. Finally, we are proposing to 
incorporate the CITES National Legislation Project designations into 
the requirements for certain imports in a new paragraph (e)(11) and, 
consequently, we are proposing to add cross-references to proposed 
paragraph (e)(11) in paragraphs (e)(2), (e)(6)(i)(D), and (e)(10)(i).

Public Comments

    We are seeking comments on the proposed rule and on the draft 
environmental assessment and economic analysis. While we have given 
careful consideration to these proposed regulatory changes, we seek 
comments on the impact of the proposed regulatory changes in this 
proposed rule on the conservation of African elephants and on the 
affected public. We also seek comment on the impact of not including 
some or all of these requirements in the rule and whether these 
requirements are clearly understandable. We also seek comment from the 
public on what viable opportunities exist for even more robust 
conservation of African elephants and supporting evidence that such 
viable opportunities will provide even more robust conservation of 
African elephants.
    We are also particularly seeking public comments on the following 
specific requirements we have proposed:
     Our proposed specific enhancement requirements for the 
import of wild-sourced live African elephants, including the list of 
factors proposed to be included in a range-country certification 
statement, and how to more generally ensure that funds derived from the 
import are applied primarily to African elephant conservation.
     Our proposed specific enhancement requirements for the 
import of sport-hunted trophies of African elephants, including the 
list of factors proposed to be included in a range-country 
certification, and how to more generally ensure that funds derived from 
the import are applied primarily to African elephant conservation.
     How to ensure an effective transfer of hunting revenues 
back into conservation of the species, including the kinds of 
regulations, infrastructure, or standard processes the range country of 
the hunt should have in place to ensure that hunting revenues add to 
and do not simply substitute for other existing funding for 
conservation.
    We seek comments concerning whether we should consider including 
any other prohibitions, conditions, or exceptions in our proposed 
paragraphs (e)(2), (e)(6)(ii), (e)(10), and (e)(11) in 50 CFR 17.40(e), 
pertaining to activities with live African elephants, pertaining to 
activities with African elephant parts and products other than ivory 
and sport-hunted trophies, pertaining to making enhancement 
determinations that will continue to be required by the 4(d) rule for 
the importation of African elephant sport-hunted trophies, and 
pertaining to limiting trade in African elephants to Parties with a 
CITES Category One designation under the CITES National Legislation 
Project.
    The Service requests public comment and supporting evidence on the 
analysis and on the alternatives explored in this rule's draft 
environmental assessment

[[Page 68990]]

and economic analysis. In addition to the preferred alternative 
(Alternative 2) discussed in this proposed rule, the Service has 
evaluated two other alternatives. Alternative 1 is the ``no action'' 
alternative and would maintain the 4(d) rule as it is currently 
written. Alternative 3 would revise the 4(d) rule by removing 50 CFR 
17.40(e)(2), the provision in the current 4(d) rule that does not 
require an ESA permit under 50 CFR 17.32 for otherwise prohibited 
activities with live African elephants, and parts and products other 
than ivory and sport-hunted trophies, when the Service's regulatory 
requirements implementing CITES (50 CFR part 23), general permits 
procedures (50 CFR part 13), and general procedures for the 
importation, exportation, and transportation of wildlife (50 CFR part 
14) have been met. In addition to deletion of 50 CFR 17.40(e)(2), 
Alternative 3 would also limit trade in live African elephants, sport-
hunted trophies, and parts and products other than ivory and sport-
hunted trophies to Parties with a CITES Category One designation under 
the CITES National Legislation Project.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed under ADDRESSES. We will not accept 
comments sent by email or fax or to an address not listed under 
ADDRESSES. We will post your entire comment--including your personal 
identifying information--on https://www.regulations.gov. If you provide 
personal identifying information in your written comments, you may 
request at the top of your document that we withhold this information 
from public review. Additionally, if you provide personal identifying 
information in your oral comments during the public hearing, you may 
request at that time that we withhold this information from public 
review on https://www.regulations.gov. However, we cannot guarantee 
that we will be able to do so. Comments and materials we receive, as 
well as supporting documentation we used in preparing this proposed 
rule, will be available for public inspection on https://www.regulations.gov.

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. The Service has assessed the expected direction of change 
in benefits, costs, and transfers from this rulemaking and has 
evaluated alternatives in the draft environmental assessment and 
economic analysis (see the Federal eRulemaking Portal in ADDRESSES).
    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 proposed rule in a 
manner consistent with these requirements.
    The Service has prepared a draft environmental assessment, as part 
of our review under the National Environmental Policy Act (NEPA), which 
is available for review and comment (see the National Environmental 
Policy Act section below in the preamble). The proposed rule would 
revise the 4(d) rule that regulates trade of African elephants 
(Loxodonta africana). We propose to revise the 4(d) rule to more 
strictly control U.S. trade in live African elephants, African elephant 
sport-hunted trophies, and African elephant parts and products other 
than ivory and sport-hunted trophies. The proposed rule does not affect 
the regulations for African elephant ivory.
    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 would 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 would 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 for industries described in the 
North American Industry Classification System (NAICS). To assess the 
effects of the proposed rule on small entities, we focus on entities 
(zoos and travelling exhibits) that are equipped to care for and feed a 
captive-held elephant, entities that sell parts and products 
(furniture, luggage and leather goods, gifts and souvenirs, and used 
merchandise) other than ivory and sport-hunted trophies, and entities 
that provide guide services for trophy hunting. The industries most 
likely to be directly affected are listed in the table below along with 
the relevant SBA size standards. As shown in table 1, most businesses 
within these industries are small entities (U.S. Census). The following 
analysis is supported by the economic analysis in the draft 
environmental assessment.

 Table 1--Potential Industries Affected by the Proposed Rule To Revise the Regulations Under Section 4(d) of the
                                            ESA for African Elephants
----------------------------------------------------------------------------------------------------------------
                                                                  Size standards                     Number of
                    Industry                        NAICS code    in millions of     Number of         small
                                                                      dollars       businesses      businesses
----------------------------------------------------------------------------------------------------------------
Zoos and botanical gardens......................          712130           $30.0             646             531
Traveling exhibits..............................          712110            30.0           5,140           4,621

[[Page 68991]]

 
Furniture stores................................          442110            22.0          23,628          20,945
Luggage and leather goods stores................          448320            30.0             988             615
Gift, novelty, and souvenir stores..............          453220             8.0          21,687          16,398
Used merchandise stores.........................          453310             8.0          20,301          15,407
All other amusement and recreation industries             713390             8.0          18,405           7,629
 (includes hunting guide services)..............
----------------------------------------------------------------------------------------------------------------

    Under the proposed rule, entities (zoos and traveling exhibits) 
would potentially be impacted if they import/export a live African 
elephant or transfer/move an African elephant after import. The draft 
environmental assessment and economic analysis shows that total 
industry imports could decrease by, at most, one shipment annually if 
the importer does not choose to substitute a Category One designated 
country.
    Under the proposed rule, entities that sell parts and products 
(furniture, luggage and leather goods, gifts and souvenirs, and used 
merchandise) other than ivory and sport-hunted trophies would 
potentially be impacted if they import their products from a non-
Category One country and do not choose to substitute a Category One 
country. The number of businesses importing parts and products other 
than ivory and sport-hunted trophies is unknown. However, we know that 
shipments from non-Category One countries averaged 60 shipments 
annually from 2010 to 2019. Assuming each shipment represents one small 
business would result in 0.1 percent of small businesses affected 
(including furniture, luggage and leather goods, gifts, and used 
merchandise stores). Due to the niche market for these types of 
products, we expect a small number of small businesses to be impacted 
under the proposed rule. The Service is requesting data about the 
number of small businesses that would be impacted by the proposed rule.
    Under the proposed rule, U.S. entities that provide guide services 
for hunting African elephants would potentially be impacted if they 
provide these services in a non-Category One designated country and do 
not choose to or cannot provide those services in a Category One 
designated country. The number of U.S. businesses providing guide 
services for hunting African elephants is unknown. Due to the niche 
market for this service, we expect few small businesses to be impacted 
under the proposed rule. The Service is requesting data about the 
number of small businesses that provide guide services for hunting 
African elephants in non-Category One designated countries and whether 
these businesses would incur increased costs if they change from a non-
Category One designated country to a Category One designated country.
    In addition to determining whether a substantial number of small 
entities are likely to be affected by this proposed rule, we must also 
determine whether the proposed rule is anticipated to have a 
significant economic effect on those small entities. As noted in the 
draft environmental assessment and economic analysis, for businesses 
importing/exporting live African elephants (zoos and travelling 
exhibits), the incremental changes of submitting an additional form 
(with a $100 permit application processing fee) or a decrease of at 
most one shipment out of total industry imports is expected to be 
negligible. Therefore, the proposed rule would not have a significant 
economic effect on zoos and travelling exhibits. For all industries, it 
is possible that some importers would substitute a Category One 
designated country, and the impacts of the proposed rule would be 
reduced.
    Therefore, we certify that this proposed rule would 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.). 
An initial regulatory flexibility analysis is not required. 
Accordingly, a small entity compliance guide is not required.
    Small Business Regulatory Enforcement Fairness Act: This proposed 
rule is not a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. This rule:
    a. Will not have an annual effect on the economy of $100 million or 
more.
    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.):
    a. This proposed rule would not significantly or uniquely affect 
small governments. A small government agency plan is not required. The 
proposed rule imposes no unfunded mandates. Therefore, this proposed 
rule would have no effect on small governments' responsibilities.
    b. This proposed rule would not produce a Federal requirement of 
$100 million or greater in any year and is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.
    Takings: Under Executive Order 12630, this proposed rule does not 
have significant takings implications. While certain activities that 
were previously unregulated would now be regulated, possession would 
remain unregulated, except with regard to illegally taken or illegally 
traded specimens. A takings implication assessment is not required.
    Federalism: These proposed revisions to part 17 do not contain 
significant federalism implications. A federalism summary impact 
statement under Executive Order 13132 is not required.
    Civil Justice Reform: Under Executive Order 12988, the Office of 
the Solicitor has determined that this proposed rule does not unduly 
burden the judicial system and meets the requirements of sections 3(a) 
and 3(b)(2) of the Order.
    Paperwork Reduction Act (44 U.S.C. 3501 et seq.): This proposed 
rule contains new information collections requiring approval under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We may not 
conduct or sponsor and you are not required to respond to a collection 
of information unless it displays a currently valid Office of 
Management and Budget (OMB) control number. We will request OMB 
approval of the new reporting and recordkeeping requirements identified 
below:

[[Page 68992]]

    (1) New Permit Application (Form 3-200-37h), ``Transfer/Transport/
Export of Captive-Held African Elephants under the U.S. Endangered 
Species Act (ESA)'' 50 CFR 17.40--We propose a new permit application, 
Form 3-200-37h, which will cover activities involving the export and/or 
transport and/or interstate or foreign commerce of captive-held African 
elephants. The application form applies to both wild-sourced and 
captive-bred live African elephants. The information provided in the 
application form will be used to determine whether a permit can be 
issued to the applicant under the relevant Federal regulations 
pertaining to the requested activity.
    We are also requesting OMB approval to develop this application 
form in the Service's ePermits system to reduce public burden. Upon 
request, we will provide the public with paper-based (or PDF) versions 
if they do not have reliable access to the internet.
    Information proposed to be collected from domestic entities (i.e., 
individuals, private sector, State/local/Tribal governments) is listed 
below, noting applicants may need to provide information from the 
foreign entity as part of their application submission:
     Standardized identifier information required in 50 CFR 
13.12.
     Name and address where the permit is to be mailed, if 
different from physical address.
     Name, phone number, and email of individual(s) for the 
Service to contact with questions.
     Whether the applicant or any of the owners of the business 
(if applying as a business, corporation, or institution) have been 
assessed a civil penalty or convicted of any criminal provision of any 
statute or regulation relating to the activity for which the 
application is filed; been convicted, or entered a plea of guilty or 
nolo contendere, for a felony violation of the Lacey Act, the Migratory 
Bird Treaty Act, or the Bald and Golden Eagle Protection Act; forfeited 
collateral; or are currently under charges for any violation of the 
laws.
     Type of activity requested (export or interstate commerce 
or transport).
     The current location of the animal(s) (if different from 
the physical address).
     Name and physical address of the recipient of the 
specimen.
     For each animal involved in the export/transport, the 
applicant must provide the following information:

--Scientific name (genus, species, and if applicable, subspecies);
--Common name;
--Approximate birth date (mm/dd/yyyy);
--Wild or captive-born;
--Quantity;
--Sex (males, females, e.g., 10, 2); and
--Permanent markings or identification (microchip #, leg band #, 
tattoos, studbook #, etc.).

     Information regarding source of specimen(s);
     A description and justification for the requested 
activity;
     Information regarding technical expertise and facilities;
     Information confirming the receiving facility meets the 
CITES ``appropriate and acceptable destination''; and
     The transportation/shipment condition of the live animals.
    (2) Range Country Certification Requirements--As described above, 
the proposed rule establishes an annual certification requirement for 
range countries to provide the Service with information about the 
management and status of African elephants and their habitat, within 
their country. This is not part of the application form itself, but a 
separate certification document/report/letter from the foreign 
country's government. The foreign government may provide the 
certification and information directly to the Service or the applicant 
may provide it to the Service. The certification and information would 
be subject to verification by the Service. This annual certification 
from the range country will be kept on file and made available to the 
public. Without this properly documented and verifiable annual 
certification, the Service would be unable to issue the requested 
import permit. This annual certification is specifically for requests 
to import live, wild-sourced African elephants or African elephant 
sport-hunted trophies. Information to be collected from the range 
country for the import of live, wild-sourced elephants includes 
specific information on whether family units were kept intact and 
whether any of the animals collected are pregnant. Alternatively, 
information collected for the import of sport-hunted trophies includes 
specific information on the use of the meat of the animal.
    (3) Recordkeeping Requirements--Records regarding details on the 
identification of the elephants, as well as regarding its acquisition, 
original source, and subsequent transfers are needed to complete the 
new application form. In addition, records needed include staff 
technical expertise and facility information for the species.
    (4) Permit Fee--The newly proposed Form 3-200-37h will impose a new 
nonhour burden cost of $100 per application. Amendments will incur a 
$50 processing fee.
    All Service permit applications are in the 3-200 series of forms, 
each tailored to a specific activity based on the requirements for 
specific types of permits. We collect standard identifier information 
for all permits, such as the name of the applicant and the applicant's 
address, telephone numbers, tax identification number, email address, 
and website address, if applicable. Standardization of general 
information common to the application forms makes the filing of 
applications easier for the public, as well as expediting our review of 
applications.
    The information that we collect on applications and reports is the 
minimum necessary for us to determine if the applicant meets/continues 
to meet issuance requirements for the particular activity. Respondents 
submit application forms periodically as needed; submission of reports 
is generally on an annual basis, or as identified conditionally as part 
of an issued permit. We examined applications in this collection, 
focusing on questions frequently misinterpreted or not addressed by 
applicants. We have made clarifications to many of our applications to 
make it easier for the applicant to know what information we need and 
to accommodate future electronic permitting. Use of these forms:
     Reduces burden on applicants.
     Improves customer service.
     Allows us to process applications and finalize reviews 
quickly.
    A copy of the proposed Form 3-200-37h, ``Interstate Commerce of 
Transfer of Captive-Held African Elephants under the U.S. Endangered 
Species Act (ESA)'' is available to the public by submitting a request 
to the Service Information Collection Clearance Officer using one of 
the methods identified in ADDRESSES. Form 3-200-37h is also uploaded to 
the Federal eRulemaking Portal as a supporting document.
    Title of Collection: Federal Fish and Wildlife Permit Applications 
and Reports--Requirements for African Elephants.
    OMB Control Number: 1018--New.
    Form Numbers: FWS Form 3-200-37h (New).
    Type of Review: New.
    Respondents/Affected Public: Individuals (including hunters); 
private sector (including biomedical companies, circuses, zoological 
parks, botanical gardens, nurseries, museums, universities, antique 
dealers, exotic pet industry, taxidermists, commercial importers/
exporters of wildlife and plants, freight forwarders/brokers);

[[Page 68993]]

State, local, Tribal, and Federal governments; and foreign governments.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion or annually, depending on 
activity.
    Total Estimated Annual Nonhour Burden Cost: $2,800 for costs 
associated with application processing fees, which range from $0 to 
$250. State, local, Tribal, and Federal government agencies and those 
acting on their behalf are exempt from processing fees.

----------------------------------------------------------------------------------------------------------------
                                                                                      Average
                                  Average number  Average number  Average number    completion       Estimated
           Requirement               of annual     of responses      of annual       time per      annual burden
                                    respondents        each          responses       response         hours *
----------------------------------------------------------------------------------------------------------------
Application--Interstate Commerce or Transfer of Captive-Held African Elephants under the U.S. Endangered Species
                                 Act (ESA) (Form 3-200-37h) 50 CFR 17.40(e) NEW
----------------------------------------------------------------------------------------------------------------
Individuals.....................               1               1               1               6               6
Private Sector..................              10               1              10               6              60
Government......................               5               1               5               6              30
----------------------------------------------------------------------------------------------------------------
     ePermits Application--Interstate Commerce or Transfer of Captive-Held African Elephants under the U.S.
                        Endangered Species Act (ESA) (Form 3-200-37h) 50 CFR 17.40(e) NEW
----------------------------------------------------------------------------------------------------------------
Individuals.....................               1               1               1            5.25               5
Private Sector..................              10               1              10            5.25              53
Government......................               5               1               5            5.25              26
----------------------------------------------------------------------------------------------------------------
 Amendment--Interstate Commerce or Transfer of Captive-Held African Elephants under the U.S. Endangered Species
                                 Act (ESA) (Form 3-200-37h) 50 CFR 17.40(e) NEW
----------------------------------------------------------------------------------------------------------------
Individuals.....................               1               1               1               4               4
Private Sector..................               5               1               5               4              20
Government......................               3               1               3               4              12
----------------------------------------------------------------------------------------------------------------
 ePermits Amendment--Interstate Commerce or Transfer of Captive-Held African Elephants under the U.S. Endangered
                             Species Act (ESA) (Form 3-200-37h) 50 CFR 17.40(e) NEW
----------------------------------------------------------------------------------------------------------------
Individuals.....................               1               1               1             3.5               4
Private Sector..................               5               1               5             3.5              18
Government......................               3               1               3             3.5              11
----------------------------------------------------------------------------------------------------------------
                          Range Country Certification Requirements 50 CFR 17.40(e) NEW
----------------------------------------------------------------------------------------------------------------
Foreign Government..............              37               1              37              10             370
                                 -------------------------------------------------------------------------------
    Totals:.....................              87  ..............              87  ..............             619
----------------------------------------------------------------------------------------------------------------
* Rounded.

    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of response.
    Written comments and recommendations for the proposed information 
collection should be sent within 60 days of publication of this notice 
to www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under Review--Open for Public 
Comments'' or by using the search function. Please provide a copy of 
your comments to the Service Information Collection Clearance Officer, 
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W); 
Falls Church, VA 22041-3803; or by email to [email protected]. Please 
reference ``OMB Control Number 1018--African Elephant'' in the subject 
line of your comments.
    National Environmental Policy Act (NEPA): This proposed rule is 
being analyzed under the criteria of the National Environmental Policy 
Act, the Department of the Interior procedures for compliance with NEPA 
(Departmental Manual (DM) and 43 CFR part 46), and Council on 
Environmental Quality regulations for implementing the procedural 
provisions of NEPA (40 CFR parts 1500-1508). We have prepared a draft 
environmental assessment to determine whether this rule will have a 
significant impact on the quality of the human environment under the 
National Environmental Policy Act of 1969. The draft environmental 
assessment is available online at https://www.regulations.gov at Docket 
Number FWS-HQ-IA-2021-0099.
    Government-to-Government Relationship with 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 proposed rule under

[[Page 68994]]

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.
    Energy Supply, Distribution, or Use: Executive Order 13211 pertains 
to regulations that significantly affect energy supply, distribution, 
or use. This proposed rule would revise the current regulations in 50 
CFR part 17 regarding trade in African elephants and African elephant 
parts and products. This proposed rule would not significantly affect 
energy supplies, distribution, and use. Therefore, this action is not a 
significant energy action, and no statement of energy effects is 
required.
    Clarity of the Rule: We are required by Executive Orders 12866 and 
12988 and by the Presidential Memorandum of June 1, 1998, to write all 
rules in plain language. This means that each rule we publish must:

    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, please send us 
comments by one of the methods listed under ADDRESSES. To better help 
us revise the rule, your comments should be as specific as possible. 
For example, you should tell us the numbers of the sections or 
paragraphs that are unclearly written, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 
etc.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. In Sec.  17.40 amend paragraph (e) by:
0
a. In the introductory text, removing the reference ``paragraphs (e)(2) 
through (9)'' and adding in its place the reference ``paragraphs (e)(2) 
through (11)'';
0
b. Revising paragraphs (e)(1), (e)(2), and (e)(6)(i)(D);
0
c. Redesignating paragraphs (e)(6)(ii) and (iii) as paragraphs 
(e)(6)(iii) and (iv) and adding a new paragraph (e)(6)(ii); and
0
d. Adding paragraphs (e)(10) and (e)(11).
    The revisions and additions read as follows:


Sec.  17.40  Special rules--mammals.

* * * * *
    (e) * * *
    (1) Definitions. In this paragraph (e), the following terms have 
these meanings:
    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.
    Range country means a country that exercises jurisdiction over part 
of the natural geographic range of the African elephant including the 
following: Angola; Benin; Botswana; Burkina Faso; Cameroon; Central 
African Republic; Chad; Congo, Republic of the; Congo, The Democratic 
Republic of the; C[ocirc]te d'Ivoire; Equatorial Guinea; Eritrea; 
Eswatini; Ethiopia; Gabon; Ghana; Guinea; Guinea-Bissau; Kenya; 
Liberia; Malawi; Mali; Mozambique; Namibia; Niger; Nigeria; Rwanda; 
Senegal; Sierra Leone; Somalia; South Africa; South Sudan; Tanzania, 
United Republic of; Togo; Uganda; Zambia; and Zimbabwe.
    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) Parts and products other than ivory and sport-hunted trophies. 
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 and paragraph (e)(11) of this section have 
been met.
* * * * *
    (6) * * *
    (i) * * *
    (D) The requirements in 50 CFR parts 13, 14, and 23 and paragraph 
(e)(11) of this section have been met; and
* * * * *
    (ii) To make an enhancement determination for African elephant 
sport-hunted trophies under paragraph (e)(6)(i)(B) of this section and 
Sec.  17.32, the Service must possess a properly documented and 
verifiable certification by the government of the range country dated 
no earlier than 1 year prior to the date the following determinations 
are made:
    (A) African elephant populations in the range country are stable or 
increasing, as well as sufficiently large to sustain sport hunting at 
the level authorized by the country.
    (B) Regulating authorities have the capacity to obtain sound data 
on these populations using scientifically based methods consistent with 
peer-reviewed literature.
    (C) Regulating authorities recognize these populations as a 
valuable resource and have the legal and practical capacity to manage 
them for their conservation.
    (D) Regulating governments follow the rule of law concerning 
African elephant conservation and management.
    (E) The current viable habitat of these populations is secure and 
is not decreasing or degrading.
    (F) Regulating authorities can ensure that the involved trophies 
have in fact been legally taken from the specified populations.
    (G) Funds derived from the involved sport hunting are applied 
primarily to African elephant conservation, including funds used for:
    (1) Managing protected habitat, securing additional habitat, or 
restoring habitat to secure long-term populations of elephants in their 
natural ecosystems and habitats, including corridors between protected 
areas;
    (2) Improving the quality and carrying capacity of existing 
habitats;
    (3) Helping range state governments to produce or strengthen 
regional and national elephant conservation strategies and laws;
    (4) Developing capacity within the range country to survey, census, 
and monitor elephant populations;
    (5) Conducting elephant population surveys;
    (6) Supporting enforcement efforts to combat poaching of African 
elephants;

[[Page 68995]]

    (7) Supporting local communities to help conserve the species in 
the wild through protecting, expanding, or restoring habitat or other 
methods used to prevent or mitigate human-elephant conflict; and
    (8) Supporting local communities by ensuring that 100 percent of 
the available meat from the African elephant hunt will be donated to 
local communities.
* * * * *
    (10) Live African elephants. (i) Live African elephants may be 
imported into the United States, provided the Service determines that 
the activity will enhance the survival of the species, the Service 
finds that the proposed recipient is suitably equipped to house and 
care for the live elephant (see criteria in Sec.  23.65 of this 
chapter), the animal is accompanied by a threatened species permit 
issued under Sec.  17.32, and the requirements in 50 CFR parts 13, 14, 
and 23 and paragraph (e)(11) of this section have been met.
    (ii) To make an enhancement determination for the import of wild-
sourced live African elephants under paragraph (e)(10)(i) of this 
section and Sec.  17.32, the Service must possess a properly documented 
and verifiable certification by the government of the range country 
dated no earlier than 1 year prior to the date the following 
determinations are made:
    (A) African elephant populations in the range country are stable or 
increasing, as well as sufficiently large to sustain removal of live 
elephants at the level authorized by the country.
    (B) Regulating authorities have the capacity to obtain sound data 
on these populations using scientifically based methods consistent with 
peer-reviewed literature.
    (C) Regulating authorities recognize these populations as a 
valuable resource and have the legal and practical capacity to manage 
them for their conservation.
    (D) Regulating governments follow the rule of law concerning 
African elephant conservation and management.
    (E) The current viable habitat of these populations is secure and 
is not decreasing or degrading.
    (F) Regulating authorities can ensure that the involved live 
animals have in fact been legally taken from the specified populations 
and family units were kept intact to the maximum extent practicable.
    (G) Regulating authorities can ensure that no live African 
elephants to be imported are pregnant.
    (H) Funds derived from the import are applied primarily to African 
elephant conservation, including funds used for:
    (1) Managing protected habitat, securing additional habitat, or 
restoring habitat to secure long-term populations of African elephants 
in their natural ecosystems and habitats, including corridors between 
protected areas;
    (2) Improving the quality and carrying capacity of existing 
habitats;
    (3) Helping range state governments to produce or strengthen 
regional and national African elephant conservation strategies and 
laws;
    (4) Developing capacity within the range country to survey, census, 
and monitor African elephant populations;
    (5) Conducting African elephant population surveys;
    (6) Supporting enforcement efforts to combat poaching of African 
elephants; and
    (7) Supporting local communities to help conserve the species in 
the wild through protecting, expanding, or restoring habitat or other 
methods used to prevent or mitigate human-elephant conflict.
    (I) The government of the range country first considers any live 
elephants that it approves for export for both in situ conservation 
programs and for transportation to other locations to augment extant 
wild populations or reintroduce elephants to extirpated ranges.
    (iii) Live African elephants may be sold or offered for sale in 
interstate commerce, and delivered, received, carried, transported, or 
shipped in interstate commerce in the course of a commercial activity, 
provided the Service finds that the proposed recipient is suitably 
equipped to house and care for the live elephant (see criteria in Sec.  
23.65 of this chapter), and a special purpose permit is issued under 
Sec.  17.32 or a captive-bred wildlife registration is issued under 
Sec.  17.21(g).
    (iv) Each permit issued to authorize activity with a live African 
elephant under 50 CFR parts 17 or 23 must include a condition that the 
elephant and its offspring will not be sold or otherwise transferred to 
another person without a special purpose permit issued under Sec.  
17.32. Each special purpose permit for a live African elephant must 
also include the same condition. Each special purpose permit issued for 
a live African elephant will require a finding by the Service that the 
proposed recipient is suitably equipped to house and care for the live 
elephant (see criteria in Sec.  23.65 of this chapter).
    (11) CITES National Legislation Project and African elephants. 
African elephants and their parts and products may not be imported into 
the United States under the exceptions for import provided in Sec.  
17.32 or paragraphs (e)(2), (e)(6), or (e)(10) of this section except 
when all trade in the specimen has been and is accompanied by a valid 
CITES document issued by the Management Authority of a Party with a 
CITES Category One designation under the CITES National Legislation 
Project (see Sec.  23.7 of this chapter, http://www.cites.org).

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2022-25010 Filed 11-16-22; 8:45 am]
BILLING CODE 4333-15-P