[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