[Federal Register Volume 89, Number 63 (Monday, April 1, 2024)]
[Rules and Regulations]
[Pages 22522-22555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06417]



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Vol. 89

Monday,

No. 63

April 1, 2024

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





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

  Federal Register / Vol. 89 , No. 63 / Monday, April 1, 2024 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-IA-2021-0099; FXIA16710900000-234-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: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising 
the rule for the African elephant (Loxodonta africana) promulgated 
under section 4(d) of the Endangered Species Act of 1973, as amended 
(ESA). The 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 all 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. Amendments to the section 4(d) regulations in 
2016 prohibited the import and export of African elephant ivory with 
limited exceptions. This final rule does not affect the regulations 
pertaining to African elephant ivory.

DATES: This rule is effective May 1, 2024.
    Information Collection Requirements: If you wish to comment on the 
information collection requirements in this 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 rule between 
30 and 60 days after the date of publication of this rule in the 
Federal Register. Therefore, comments should be submitted to OMB by May 
1, 2024.

ADDRESSES: This rule and supporting documentation, including the 
environmental assessment and economic analysis, are available at 
https://www.regulations.gov in Docket No. FWS-HQ-IA-2021-0099.
    Information Collection Requirements: Written comments and 
suggestions on the information collection requirements should be 
submitted within 30 days of publication of this document 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 (mail); or [email protected] (email). 
Please reference OMB Control Number 1018-0186 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 Final 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. Considering the rise in international trade of live 
elephants, particularly of wild-sourced elephants, and recent CITES 
developments concerning regulation of trade in live elephants, as well 
as a need to clarify our enhancement standards and improve the 
permitting process for import of sport-hunted elephant trophies, we 
reevaluated the provisions of the regulations that were issued under 
section 4(d) of the ESA for the African elephant. We find it is 
appropriate for the United States to adopt 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 
domestic demand for live African elephants enhances the conservation of 
the species and does not contribute to the decline 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 of the species. Clarifying 
the enhancement standards in the decision-making process for the import 
of African elephant sport-hunted trophies will increase transparency 
with stakeholders. To support U.S. African elephant conservation 
efforts, we will 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. On November 17, 2022, we 
published a proposed rule to revise the current section 4(d) 
regulations (87 FR 68975) and opened the public comment period for 60 
days, until January 17, 2023. On January 5, 2023, we held a virtual 
public hearing where we explained the proposed changes and sought 
public comment. On January 17, 2023, we extended the public comment 
period for an additional 60 days, to March 20, 2023 (88 FR 2597).
    We are revising the section 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 final section 4(d) rule removes 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 final rule 
also establishes the standards used to evaluate ``enhancement'' under 
the ESA for the import of wild-sourced live African elephants under a 
new 50 CFR 17.40(e)(10). This provision establishes an annual 
certification requirement for range countries that allow for export of 
live African elephants destined for the

[[Page 22523]]

United States to provide the Service with information about the 
management and status of African elephants in their country.
    This final rule also clarifies 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). This 
provision establishes 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 provision does not change the enhancement 
requirement for the import of sport-hunted trophies under the previous 
section 4(d) rule but clarifies how that requirement can be met.
    This final rule also includes incorporating the CITES National 
Legislation Project category designations (see 50 CFR 23.7 and https://www.cites.org) into the acceptance of imports under 50 CFR 17.40(e)(2), 
(e)(6), and (e)(10) under a new 50 CFR 17.40(e)(11).

Need for Regulatory Action

    We have reevaluated the provisions of the current section 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 
(5 U.S.C. 553(e)) 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 revisions in this document to the section 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 
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. 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).
    In fall 2022, right before publication of the African elephant 
section 4(d) proposed rule, the Service received a petition for 
rulemaking from Conservation Force (CF) to immediately suspend, then to 
revise or repeal, the limit of two African elephant trophy import 
permits per calendar year in the African elephant section 4(d) 
regulations governing import of sport-hunted African elephant trophies. 
Specifically, the petitioner requests that the Service revise the 
African elephant section 4(d) rule to allow four trophies per calendar 
year to cover 2 successive years of double hunts. They request the two-
per-year rule be suspended until 2 or more years after the permitting 
backlog is addressed and recommend a Director's Order to suspend the 
two-per-year rule for an immediate effective date. The same request 
made in the petition was also submitted as part of the public-comment 
process on the African elephant section 4(d) proposed rule. The Service 
has addressed the petition in the relevant responses to public 
comments.
    This final rule clarifies the enhancement criteria for our 
assessment of an application for the import of an African elephant 
sport-hunted trophy. Under this final rule, we will continue to 
evaluate applications 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 of the species.
    Ultimately, under this final section 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.

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 (IUCN), the principal threat to African 
elephants has been poaching for ivory, but development for agriculture, 
coupled with associated human-elephant conflict as suitable elephant 
habitat is gradually reduced, are increasing as threats.
    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 sections 9 and 4(d), 
generally apply to

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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 adopt 
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 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. To clarify and 
improve this process, we are adding new provisions to 50 CFR 
17.40(e)(6) and 50 CFR 17.40(e)(10) that 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. We note that 
the certification from the range country to the Service will be able to 
reflect if there are no or minimal changes from one year to the next. 
If our evaluation determines that the requirements are no longer being 
met, we will work with the range country to communicate and address any 
concerns. The annual certification requirement will increase the 
efficiency of our permitting process and 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 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 also increases transparency with stakeholders 
and will lead to more efficient evaluations of applications. This 
change to the section 4(d) rule does 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 decisions about whether to 
hunt African elephants will continue to be made by hunters and the 
countries that allow hunting, and imports will be allowed only in 
circumstances where the activities are well-managed. The import of any 
associated sport-hunted trophy into the United States will continue to 
be regulated and to require an enhancement finding and threatened 
species import permit. The adopted measures are 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, this 
final rule incorporates a requirement that 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 with limited 
exceptions. Making this regulatory change further ensures 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 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.
    In contrast, prohibitions for threatened species are not directly 
specified by the ESA, and instead are governed by section 4(d). 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 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

[[Page 22525]]

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 the threats that 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 section 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 section 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 countries 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 section 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 section 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 section 4(d) rule for the African elephant was further 
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 section 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 section 4(d) rule 
on July 6, 2016 (81 FR 36388, June 6, 2016). The revised rule 
prohibited the import and export of African elephant ivory with limited 
exceptions for musical instruments, items that are part of a traveling 
exhibition, and items that are part of a household move or inheritance 
when specific criteria are met and ivory for law enforcement or genuine 
scientific purposes. 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 section 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. 
The revised rule made it 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 provisions of the section 4(d) rule published 
in 2016, at 50 CFR 17.40(e), all of the prohibitions and exceptions in 
50 CFR

[[Page 22526]]

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 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 and 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

[[Page 22527]]

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 programs 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 be used only for noncommercial purposes after import, 50 
CFR 23.55. These same requirements 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 is 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 the 
Service 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, 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 the Service in 
accordance with Article III, or in the case of elephants originating 
from Zimbabwe or Botswana, if the Service 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). These amendments are the subject of ongoing discussion 
in CITES. At CoP19, the Conference of the Parties also adopted Decision 
19.168, which temporarily extends the same process to all exports of 
wild-sourced live African elephants outside the species' natural and 
historical range in Africa. Additionally, guidance on determining 
whether a proposed recipient of a living specimen of African elephant 
is suitably equipped to house and care for it was adopted at CoP18 and 
CoP19, as described below.
    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 
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)).

[[Page 22528]]

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 the legislation 
of 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 with oversight by the Standing Committee, 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).
    After the 77th Meeting of the Standing Committee (SC77) (Geneva, 
November 2023), range countries of the African elephant currently have 
national legislation classified as follows:
    Category One: Angola, Cameroon, the Democratic Republic of the 
Congo, Ethiopia, Equatorial Guinea, Guinea-Bissau, Malawi, Namibia, 
Nigeria, Senegal, South Africa, United Republic of Tanzania, and 
Zimbabwe;
    Category Two: Benin, Botswana, Burkina Faso, Chad, Republic of the 
Congo, Eritrea, Gabon, Guinea, Kenya, Mali, Mozambique, Sudan, 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 Uganda. 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. For example, following the publication of our proposed 
rule, the Secretariat announced at SC77 that the United Republic of 
Tanzania had made necessary updates to its national legislation, and 
the Standing Committee commended the United Republic of Tanzania for 
the efforts leading to their legislation being placed in 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 Regulatory Changes

    Exercising the Secretary's authority under section 4(d) of the ESA, 
we have developed a final 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. 
These suggestions were also raised in comments submitted on the 
proposed rule. We have not pursued such an option, 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 the proposed rule, we did not propose 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, regardless of whether the 
institution is suitably equipped to care for and house the elephant or 
whether the trade is detrimental to or enhances the survival of the 
species. In addition, since elephants may face human-elephant conflict, 
for example as a result of their impact on local agriculture, some 
amount of culling could continue to occur despite a ban, such that 
banning the import of sport hunted trophies could deprive range 
countries of revenue for conservation purposes without necessarily 
affecting the number of animals removed from herds. A proposed ban of 
this nature would have conflicted 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, we intend the amendments to the section 4(d) rule presented 
below to continue to encourage African countries and people living with 
elephants to enhance their survival, provide incentives to take 
meaningful actions to conserve the species, and invest much-needed 
revenue into elephant conservation. Our final rule also ensures that we 
do not allow imports in circumstances where elephants are not well-
managed and that any live elephants in trade and their offspring are 
well taken care of throughout their lifetimes.

General Provisions

    We revise the section 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 50 CFR 17.40(e)(10)(ii), including an annual certification 
requirement for range countries that allows for export of live African 
elephants destined for the United States;
     require ``suitably equipped to house and care for'' 
findings for permitted transfers after import and other

[[Page 22529]]

permitted transfers to ensure live elephants are going only to 
facilities that are suitably equipped to house and care for them;
     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 establishes 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; and
     incorporate the CITES National Legislation Project 
category designations into the acceptance of imports under current 50 
CFR 17.40(e)(2) and (e)(6) and paragraph (e)(10) under a new paragraph 
(e)(11).
    The protections this final rule provides to African elephants are 
described below. Nothing in this final rule will affect other legal 
requirements applicable to African elephants and their parts and 
products.

Import of Live Elephants

    As noted above, we established 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 final rule. 
The proposed rule (87 FR 68975, November 17, 2022) discussed the 
developments from CoP17 (Johannesburg, September-October 2016) up to 
CoP19 (Panama City, November 2022) in detail, including relevant 
amendments to Resolution Conf. 11.20 on Definition of the term 
`appropriate and acceptable destinations' and development of guidance 
related to trade in live African elephants. Additionally, decisions 
taken and guidance adopted at CoP19 further support the need for this 
rulemaking and are summarized below. As explained in our proposed rule, 
this recent CITES history and resolutions, decisions, and guidance 
surrounding the export and import of live African elephants from range 
countries underscores the need for the United States to address these 
issues in this final 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.
    Based on comments received on the proposed rule, we re-analyzed the 
data for live African elephants reported in the CITES trade database 
(https://trade.cites.org/). The total number of live African elephants 
of all origins (e.g., sourced from the wild, captive-bred, or when the 
source was unknown) reported in the CITES trade database (https://trade.cites.org/) increased from 174 individuals (as reported by the 
importing country) between 2008 and 2013 to 354 individuals (as 
reported by the importing country) between 2014 and 2019. In the 
periods 2008-2013 and 2014-2019, the number of live wild-sourced 
African elephants exported/re-exported outside the continent of Africa 
increased from 100 individuals (as reported by the importing country) 
to 138 individuals (as reported by the importing country), a 38 percent 
increase. During this same time, the number of live wild-sourced 
African elephants traded within the continent of Africa increased from 
25 individuals (as reported by the importing country) to 199 
individuals (as reported by the importing country), a 696 percent 
increase.
    Overall, the data show an increase in trade in live African 
elephants of 96.7 percent (based on importer reported data) during this 
time period. However, the data also show a shift in the trade of live 
wild-sourced African elephants. Between 2008 and 2013, 80 percent of 
the trade in live wild-sourced elephants was reported as exports 
outside the African continent, while only 36 percent was reported from 
2014 to 2019. Yet, during 2014 to 2019, 59 percent of the trade in live 
wild-sourced elephants occurred within the continent of Africa, while 
only 20 percent occurred between 2008 and 2013. These values do not 
include the trade of African elephants (originally sourced from the 
wild) between countries outside the African continent. 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, with 82 individuals (as 
reported by the exporting country) exported/re-exported between 2008 
and 2013, and 179 individuals (as reported by the exporting country) 
exported/re-exported between 2014 and 2019. This is an increase of 
approximately 118 percent in the international trade of live elephants 
during this time period. 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, have been traded in higher numbers in recent years, 
the majority within the continent of Africa.
    To generate funds for wildlife conservation and to mitigate human-
elephant conflict, an auction of live elephants took place in 2020-2021 
by the Ministry of Environment, Forestry and Tourism of Namibia. 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 and the remaining 42 were to be exported. 
Twenty-two elephants were exported to the United Arab Emirates. At this 
time, 20 elephants are still to be taken from the wild, and their 
ultimate destination is not yet publicly known.
    We are amending the section 4(d) rule as proposed 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 are also 
establishing 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). As proposed, an enhancement determination for import of 
wild-sourced live African elephants will require prior receipt of the 
properly documented and verifiable annual certification provided by the 
government of the range country to the Service. In consideration of 
comments received, we have modified the criterion at Sec.  
17.40(e)(10)(ii)(A) to include circumstances where specific offtake is 
biologically sustainable, even if the overall population in the range 
country is not currently assessed as stable or increasing. This revised 
criterion reads: ``(A) African elephant populations in the range 
country are biologically sustainable, as well as sufficiently large to 
sustain removal of live elephants at the level authorized by the 
country.''
    Additionally, this rule finalizes the proposed list of factors 
regarding the reporting of funds to be spent toward conservation of the 
species. Through this rule, Sec.  17.40(e)(10)(ii)(H) includes a non-
exhaustive list of concrete examples of how funds derived from 
activities with African elephants should be used to significantly and 
positively contribute to African elephant conservation. In this final 
rule, in consideration of comments received on the need for additional 
flexibility for range countries and local communities, we have modified 
the enhancement criterion that outlines how funds derived from live 
elephant imports should be applied toward African

[[Page 22530]]

elephant conservation. While achieving meaningful enhancement will 
often require that the top use of funds derived from activities with 
elephants be directed to elephant conservation, we are providing more 
flexibility for applicants and range countries to demonstrate the 
significance of the amount of funds put toward African elephant 
conservation when determining whether the activities enhance the 
survival of the species in the wild. We have replaced the word 
``primarily'' with ``significantly,'' as that term better represents 
the requirement that funding be provided in an amount that will lead to 
meaningfully enhancing the survival of African elephants in the wild to 
allow us greater flexibility in determining if enhancement has been 
satisfied based on the information available.
    Aside from that change in terminology, the list of factors in the 
annual certification at Sec.  17.40(e)(10)(ii)(A)-(I) is the same in 
this final rule as had been proposed. The Service will consider these 
factors as part of the determination whether the import of a wild-
sourced live African elephant meets the enhancement standard for 
issuance of a threatened species permit.
    We note that these regulations apply to import of live African 
elephants from all countries of origin, regardless of country of export 
or re-export and, therefore, 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) of the ESA 
(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 
requirements under 50 CFR part 14 have been met. This presumption can 
be overcome, however, through issuance of a section 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 section 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 [section 4(d) rule for African elephants].''
    African elephant range countries are increasingly interested in 
selling live African elephants as a means to reduce overpopulation of 
elephants in some areas and to generate revenue. Accordingly, to 
effectively implement the ESA, the United States must have sufficient 
regulatory safeguards in place to ensure that the United States does 
not generate a demand for an 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 final rule requires an enhancement finding for the issuance of 
threatened species permits under 50 CFR 17.32 for the import and export 
(including re-export) of any live African elephant to enhance the 
species' conservation and survival, allowing us to evaluate all live 
African elephant imports and exports more carefully and 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 means that the standards under 50 CFR part 
13 are also in effect for imports of all elephants from all 
populations. Examples of those 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 
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 139 (as of 9/22/2023). 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), 2023). 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 139 elephants is a minimum number.
    These 139 elephants are located across 33 institutions. This 
captive population consists of 30 males and 109 females with 5 births 
in the last 12 months (Species360 ZIMS, 2023). 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 transfers of live elephants within the United States to

[[Page 22531]]

ensure live elephants are going only to facilities that are suitably 
equipped to house and care for them. That oversight will 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 by reducing the overall number of imports to maintain 
elephants in captivity in the United States.
    The best available information demonstrates that bringing elephants 
into captivity impairs their viability--they are not self-sustaining in 
captivity, and continuous importation is required for breeding 
purposes. Ensuring that the elephants imported into the United States 
and any subsequent movement of those elephants and their offspring are 
carefully regulated is necessary to minimize future removals from the 
wild. Median lifespan of zoo-born African elephants is 17 years, 
compared with 56 years in a well-studied wild population (Clubb et al. 
2008). Mortality in the first 2 years is over 30 percent for captive-
born animals, compared to 4-25 percent in wild populations. An 
estimated 54 percent of captive-born African elephant calves in the 
United States die while still juveniles (Prado-Oviedo et al. 2016). 
Removal from the wild impacts not only the individuals that are being 
removed but also the population being left behind. The effect of 
removing wild elephants from their family group, either by culling, 
hunting, poaching or live capture, impacts the survivability of the 
wild population. As noted in the proposed rule, in the time since CITES 
CoP17, a number of African elephant range countries (including members 
of the African Elephant Coalition) and over 75 elephant scientists and 
other experts from nongovernmental conservation and animal welfare 
organizations have expressed concern over the impact on the well-being 
of the animals involved and on those remaining in the wild in Africa 
(See, e.g., SC69 Inf. 36).
    Substantive comments submitted during the comment period indicate 
the transfer of elephants between facilities in the United States is 
common. Prado-Oviedo et al. (2016) reviewed data on Asian and African 
elephants in the North American Regional Studbooks as of 2012. They 
found that, of the total population, more than 80 percent of elephants 
experienced at least one inter-zoo transfer during their lives, with 
imported African elephants transferred at a higher rate than imported 
Asian elephants. All imported elephants experienced at least one 
transfer (import to a zoo was counted as one), and ``94% experienced at 
least one subsequent transfer post-importation. In contrast, 45% (33/
73) of captive born individuals had not experienced a transfer event.''
    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.
    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 
based on a proposal submitted by the United States and then revised at 
CoP18 (both of those CITES meetings took place after our finalization 
of amendments to the section 4(d) rule for African elephants in 2016) 
and presented new reasons to reconsider our domestic regulation of live 
African elephants under the ESA.
    Additionally, as explained in our proposed rule, to assist Parties 
in undertaking the obligations of CITES Article III, paragraphs 3 b) 
and 5 b) of the Convention and paragraph 2 a) of Resolution Conf. 11.20 
(Rev. CoP18), CoP18 adopted Non-binding guidance for determining 
whether a proposed recipient of a living specimen is suitably equipped 
to house and care for it. Taxon-specific guidance for African elephants 
was subsequently developed by a working group of the CITES Animals 
Committee, 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, and 
endorsed by the CITES Standing Committee for consideration of CoP19. 
The CITES guidance was developed with participation by industry 
stakeholders, including the Association of Zoos & Aquariums (AZA), and 
the United States was a member of this working group. CoP19 
subsequently considered the guidance, and adopted the guidance, CoP19 
Doc. 48; CoP19 Plen. Rec. 2 (Rev. 1), which is available at https://cites.org/eng/imp/appropriate_and_acceptable_destinations. Relevant 
factors in the guidance that support the need for suitably equipped to 
house and care findings for transfers include, but are not limited to, 
the following in section A, paragraph 8 of the guidance: ``a) 
Membership in a recognized Zoo association can provide further 
reassurance that the destination adheres to the standards and 
guidelines of that association and helps to exchange males to prevent 
inbreeding, but it is as such neither a pre-condition for assessment of 
an appropriate destination, nor a proof that the facility is an 
appropriate and acceptable destination . . . c) arrangements should be 
made to ensure that any subsequent sale, donation or transfer of the 
animal (internationally or domestically) or of any animal born in the 
facility is also only to a facility suitably equipped to house and care 
for the specimen.''
    In furtherance of these CITES recommendations, developed with 
leadership from the United States, and to enhance the conservation of 
African elephants, our final rule addresses 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 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. As proposed, we 
are also requiring 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 will consider 
the same criteria and requirements found in 50 CFR 23.65 and applied 
during import of a live African elephant. While the Service could have 
gone further under the authority of the ESA, for example by also 
requiring a separate enhancement finding for each transfer, as is 
required for interstate commerce in endangered wildlife, we found that 
this more incremental increase in

[[Page 22532]]

requirements was well-tailored to the conservation needs of the species 
in light of current CITES recommendations.
    As noted in the proposed rule, U.S. facilities that have previously 
been authorized to import live elephants under CITES have complied with 
``suitably equipped to house and care for'' requirements. The Service 
expects that any facility wishing to transfer a live elephant will take 
necessary steps also to comply with these requirements. For any 
facility that is in compliance with these requirements, these new 
permitting requirements will impose a small recordkeeping and fee 
burden on these facilities and will 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.
    Together, the permitting requirements in this final rule for any 
individual or entity 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. These 
requirements will help prevent illegal and detrimental trade in live 
elephants; minimize the risk of negative impacts on wild populations 
and avoid injury, damage to health, or cruel treatment of live 
elephants in trade; promote the social well-being of these animals; and 
ensure that any subsequent sale, donation, or transfer of the elephant 
(internationally or domestically) or of any elephant born in the 
facility is also only to a facility suitably equipped to house and care 
for the specimen, as recommended by the CITES Conference of the Parties 
based on the conservation needs of elephants. Proper housing and care 
will 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 by reducing the overall number of imports to 
maintain elephants in captivity in the United States.

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 SSC Guiding Principles on Trophy 
Hunting as a Tool for Creating Conservation Incentives (Ver.1.0, August 
2012; IUCN Species Survival Commission) 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 outlined in this final 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 will not meet the criteria for an 
enhancement finding, and, consistent with both the previous regulations 
and these final regulations, cannot and will not be authorized for 
import into the United States. Under this final rule, we will continue 
to carefully evaluate African elephant trophy import applications in 
accordance with legal standards and the conservation needs of the 
species.
    Under the section 4(d) rule for the African elephant, issuance of 
an ESA threatened species permit to import a sport-hunted trophy of an 
African elephant 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 the 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 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. Historically, 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, as 
was the practice for a number of other threatened sport-hunted species. 
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. No countrywide ESA enhancement findings are currently in 
effect. 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). 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. 
As a matter of policy, the Service continues to have the option of 
issuing countrywide enhancement findings through a rulemaking process; 
however, to date, the Service has not chosen this option due to the 
challenges

[[Page 22533]]

of keeping the findings current in light of a lengthy rulemaking 
process.
    The application-by-application process involves additional 
information requirements, time, and staff resources to complete the 
review of each application. We used to rely mainly 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 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 expect 
a portion of those fees to be reinvested into conservation of the 
hunted species.
    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. The Service also 
assists range countries by explaining 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 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 sustain 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 can 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, by complying with our 
enhancement requirements, to help conserve elephant populations and 
their habitats and provide protection incentives to communities that 
live alongside these species.

Annual Certification for Range Countries

    To clarify and improve the permitting process, this final rule adds 
to 50 CFR 17.40(e)(6) a new provision that establishes 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 better enable us to ensure 
that authorized imports contribute to enhancing the conservation of the 
species and do not contribute to the decline of the species. In 
addition, any quotas set by range countries for sport-hunted trophies 
are typically

[[Page 22534]]

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 increases 
transparency with stakeholders and enables 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 will be more efficient under 
these revised regulations because nationwide management information for 
the species must be provided on an annual basis by the range country. 
We note that the certification from the range country to the Service 
can reflect if there are no or minimal changes from one year to the 
next. This final rule does 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 will continue to be 
regulated and require an enhancement finding and threatened species 
import permit. 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 annual 
certification provided by the government of the range country to the 
Service. As stated previously, in consideration of comments received, 
we have modified the criterion at Sec.  17.40(e)(6)(ii)(A) to include 
circumstances where specific offtake is biologically sustainable, even 
if the overall population in the range country is not currently 
assessed as stable or increasing. This revised criterion reads: ``(A) 
African elephant populations in the range country are biologically 
sustainable, as well as sufficiently large to sustain sport hunting at 
the level authorized by the country.''
    Additionally, this rule finalizes the proposed list of factors 
regarding the reporting of funds to be spent towards conservation of 
the species. Through this rule, Sec.  17.40(e)(6)(ii)(G) includes a 
non-exhaustive list of concrete examples of how funds derived from 
activities with African elephants should be used to significantly and 
positively contribute to African elephant conservation. Considering 
comments received on the need for additional flexibility for range 
countries and local communities, in the final rule we have modified the 
enhancement criterion that outlines how funds derived from sport-hunted 
trophy imports should be applied toward African elephant conservation. 
While achieving meaningful enhancement will often require that the top 
use of funds derived from activities with elephants be directed to 
elephant conservation, we are providing more flexibility for applicants 
and range countries to demonstrate the significance of the amount of 
funds put toward African elephant conservation when determining whether 
the activities enhance the survival of the species in the wild. We have 
replaced the word ``primarily'' with ``significantly'' as that term 
better represents the requirement that funding be provided in an amount 
that will lead to meaningfully enhancing the survival of African 
elephants in the wild. This allows us greater flexibility in 
determining if enhancement has been satisfied based on the information 
available. We have removed the enhancement criterion that requires 100 
percent of African elephant meat from a hunt to be donated to local 
communities. We recognize there are situations where there are no 
inhabitants, or other circumstances where it would be inappropriate to 
include this requirement. We also recognize that this form of support 
to local communities, if applicable, may also be addressed as a method 
used to prevent or mitigate human-elephant conflict under proposed 
paragraph (e)(6)(ii)(G)(7). Accordingly, in this final rule we have 
removed proposed paragraph (e)(6)(ii)(G)(8).
    Aside from these changes, the final rule text at Sec.  
17.40(e)(6)(ii)(A)-(G) contains the same list of factors in the annual 
certification as proposed. The Service will consider these factors as 
part of the determination whether the import of an African elephant 
sport-hunted trophy meets the enhancement standard.
    Under this final section 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. This requirement 
will continue to allow us to carefully evaluate each trophy import in 
accordance with legal standards and the conservation needs of the 
species. Through this rule, we are clarifying what is considered during 
enhancement evaluation, by requesting information as part of the annual 
certification process. While we already consider the information 
requested in the annual certification process, we will not hold hunters 
to standards that did not exist at the time of their hunts and their 
import applications. The regulations pertaining to sport-hunted 
trophies will apply to applications for import where the hunt date is 
on, or after, the effective date of this rule.

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 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 amended the previous 
section 4(d) rule; the final rule makes each exception to the 
prohibition on import in the section 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; https://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.
    We have identified certain narrow circumstances under which the 
import of African elephant parts and products other than ivory into the 
United States from a country that has not achieved Category One under 
the CITES National Legislation Project may benefit conservation of 
African elephants, specifically import for law enforcement purposes and 
genuine scientific purposes. To accommodate these circumstances, we 
have included limited exceptions to the CITES National Legislation 
Project Category One requirement for imports for law enforcement 
purposes and for genuine scientific purposes that benefit the 
conservation of African elephants. These narrow exceptions parallel and 
will follow the same requirements as the exceptions for law enforcement 
purposes and for genuine scientific

[[Page 22535]]

purposes currently established for the import of African elephant ivory 
(50 CFR 17.40(e)(7) and (e)(8)). Additionally, in consideration of 
comments received, particularly from African elephant range countries, 
the CITES National Legislation Project Category One requirement will 
take effect after CITES CoP20 (anticipated to be held in 2025), in 
order to give range countries additional time to comply with this 
requirement and to ensure the requirement is supportive of countries 
making efforts to comply.
    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 Rule, Public Hearing, and Public Comments Received

    On November 17, 2022, we published a proposed rule (87 FR 68975) to 
revise the rule for the African elephant, promulgated under section 
4(d) of the ESA and codified at 50 CFR 17.40(e). Originally, we opened 
the public comment period for 60 days, until January 17, 2023. On 
January 17, 2023, we extended the public comment period for an 
additional 60 days, to March 20, 2023 (88 FR 2597). On January 5, 2023, 
we held a virtual public hearing on the proposed changes to the African 
elephant section 4(d) rule. The hearing was held both in English 
(including an option for subtitles) and French so that representatives 
from African elephant range countries could participate. The public 
hearing was well attended by the public, nongovernmental organizations, 
and range countries. A common request during the public hearing was to 
extend the comment period, which we did. Comments received during the 
public hearing have been addressed in the comment responses, below.
    We received 138,668 comments in response to the proposed rule, 
including 4 letter-writing campaigns with more than 111,606 signatures. 
Three of the letter-writing campaigns were in strong support of 
strengthening the African elephant regulations and proposed that the 
Service implement a ban on the import of live elephants and sport-
hunted trophies. Counting each of the letter-writing campaigns as one 
substantive comment, approximately 600 of the comments received were 
substantive. We received comments from individuals, hunting 
organizations, zoological associations, conservation/environmental 
organizations, other nongovernmental organizations, range countries, 
and concerned citizens.
    Request for extension of the comment period. We received a number 
of comments that requested that we extend the public comment period 
beyond 60 days as originally provided in the proposed rule. We extended 
the public comment period by an additional 60 days to March 20, 2023, 
to give the public, stakeholders, and our range country partners an 
additional opportunity to provide comments and supporting data on the 
proposed rule.
    General comments. It is clear from the comments we received that 
there are strongly held views in the United States on the conservation 
and trade in African elephants. Regardless of perspectives and 
positions, there is overwhelming concern for elephant populations and a 
belief that the U.S. Government should take steps to protect elephants 
in Africa. Many commenters urged us to implement a complete ban on the 
import of live African elephants and/or sport-hunted trophies; others 
stated that the proposed regulations were too stringent and will lead 
to less funding available for African elephant conservation. Some 
commenters provided information in support of their positions; some 
offered specific suggestions and amendments to the proposed regulatory 
text; and others offered opinions regarding the protection and 
conservation of African elephants. In developing this final rule, we 
evaluated the comments and information received. We note that there 
were several comments that provided African elephant data but did not 
reference where that data came from. In these circumstances, we were 
not able to consider the numbers as we could not confirm the source. We 
appreciate the careful consideration given to this proposal by the many 
groups, organizations, range countries, and individuals who provided 
comments. A summary and analysis of specific comments that were inside 
the scope of the rulemaking follows:
    (1) Comment: A commenter recommended clarifying that the annual 
certification requirement is applicable to every country that exports 
any African elephant specimens. The commenter requested that the 
Service define what constitutes an African elephant trophy and the 
appropriate CITES reporting codes (TRO or H) in the CITES trade 
database. The commenter recommended that the Service use the purpose 
code ``H'' as the standard for identifying elephant trophy imports into 
the United States.
    Response: The annual certification requirement applies to all wild-
sourced African elephants, regardless of whether the import is for a 
live or a sport-hunted trophy, as both actions would remove or has 
functionally removed an elephant from the wild. The import of a 
captive-bred African elephant from a non-range country will still 
require an enhancement determination to be made but will not require 
the annual certification from the range country as the animal would not 
be removed from the wild. We have defined the term ``sport-hunted 
trophy'' at 50 CFR 23.74, and that definition will apply to any African 
elephant sport-hunted trophies. The term ``hunting trophy'' includes, 
among other requirements, the need for the trophy to be ``legally 
obtained by the hunter through hunting for his or her personal use.'' 
Many parts and products imported into the United States are not 
obtained by hunting or are not solely for personal use of the hunter 
and would, therefore, not meet the definition.
    (2) Comment: Several commenters requested that the annual 
certification criteria for the import of live African elephants and 
elephant trophies be strengthened and expanded. Specifically, multiple 
commenters believe the Service should make clear what type of evidence 
must be submitted to properly document and verify elephant populations. 
They requested that the rule specify: who is to make that 
determination, how many years of population data is necessary to 
determine a trend, and that that data must be submitted for each 
elephant population, including transboundary populations, or, at a 
minimum, for those elephant populations targeted for the potential 
capture and removal of live elephants in the range country. There were 
recommendations to require a certification be dated within a year.

[[Page 22536]]

Additionally, there was a recommendation that the Service divide the 
proposed certification requirements into two separate certifications: 
one that may be submitted on an annual basis and includes the country-
wide determinations reflected in proposed paragraph (e)(10)(ii) in 
criteria (A) through (E) and another that must be submitted on a 
permit-by-permit basis and includes the import-specific determinations 
contemplated in proposed paragraph (e)(10)(ii) in criteria (F) through 
(I).
    Response: We have carefully considered the annual certification 
criteria and conclude that the standards we published in the proposed 
rule will help provide us with the data to make a conservation-based 
decision while not being overly burdensome, particularly for range 
countries. The clarification of the enhancement standards contains the 
information considered when making an enhancement determination. This 
includes using the best available data and information on population 
estimates, including historically and at the present.
    (3) Comment: A commenter expressed concern that the annual 
certification requirements for elephant trophy exporting countries will 
further delay issuance of permits and recommended that the current 
measures continue with modification to facilitate a more-efficient 
permitting process.
    Response: The information identified as being requested as part of 
the annual certification process is already currently considered in the 
processing of applications for sport-hunted trophies as part of the 
enhancement finding required for a threatened species import permit 
under 50 CFR 17.32. Our intent in requiring an annual certification is 
to clarify the enhancement standards and increase transparency with 
stakeholders. If there are no or minimal changes from one year to the 
next, the certification from the range country to the Service will be 
able to reflect this situation. By requiring certification, this 
information will be provided by the range country on an annual basis 
and will improve application evaluation efficiency.
    (4) Comment: A commenter requested clarification regarding 
``properly documented'' and ``certifiable'' information that a range 
country recognizes its African elephants as a ``valuable resource'' and 
clarification in the criterion regarding ``regulating governments 
follow the rule of law concerning African elephant conservation and 
management.'' The commenter recommended that the Service request 
supporting materials such as the range country's constitution, 
statutes, and regulations, policies, management plans/strategies, or 
other relevant written conservation documents as applicable that 
provide evidence of its recognition that African elephants are valuable 
resources. In addition, they commented the Service should require 
information on conservation and management of its elephant populations, 
including relevant statutes, regulations, policies, strategies, 
guidelines, and best management practices at the county, municipal, 
district, or village levels, depending on how elephant conservation and 
management are governed.
    Response: We have carefully considered the annual certification 
criteria and conclude that the standards we published in the proposed 
rule provide us with the data to make a conservation-based decision 
while not being overly burdensome, particularly for range countries. We 
recognize that the information we have requested may come in different 
forms from different range countries. In this rule, we are clarifying 
the enhancement criteria and will review all information submitted by 
the range country. Should any additional clarification be required to 
complete the review of an application, we may request additional 
information from the range country.
    (5) Comment: A commenter requested clarification regarding 
``practical capacity'' and whether that term includes the number of 
employees (i.e., managers, scientists, law enforcement personnel) 
dedicated to African elephant conservation, the amount of funding 
available for elephant conservation, and the political will of the 
government and its leadership to conserve elephants.
    Response: Conservation programs across range countries differ. We 
expect that revenues generated from the activity of the removal of the 
elephant from the wild will be reinvested into the conservation of the 
species and combat threats to the populations within the range country. 
Each range country will be required to provide documentation to explain 
how this is achieved.
    (6) Comment: A commenter requested clarification regarding the 
phrase ``the current viable habitat of these populations is secure and 
is not decreasing or degrading'' and ensuring confirmation that that 
habitat is not decreasing in quantity or quality, or not being degraded 
by natural or anthropogenic factors. The commenter recommended that 
range countries: (1) identify any existing potential threats to viable 
elephant habitat, such as timber harvest, mining, road construction, 
authorized or unauthorized development, livestock grazing, climate 
change, wildfires (particularly those intentionally set by humans), 
land clearing and conversion, and poaching; and (2) articulate the 
specific actions taken to prevent, reduce, or mitigate such threats. 
Further, the commenter believed that range countries should be asked to 
provide copies of any laws, regulations, and management plans that 
govern land uses and extractive industries that may pose threats to the 
quantity and quality of viable elephant habitat to ensure that such 
legal standards are sufficient to manage the impact of threats to 
elephant habitat.
    Response: Our intent under the section 4(d) rule is to clarify the 
enhancement standards and increase transparency with stakeholders. 
Through this rule, we are clarifying what information from the range 
country is considered during enhancement evaluation, by requesting the 
information as part of the annual certification process. Due to the 
required certification, the range country will provide this information 
on an annual basis, which will improve application evaluation 
efficiency. The information requested as part of the annual 
certification process is already currently considered in the processing 
of applications for sport-hunted trophies as part of the enhancement 
finding required for a threatened species import permit under 50 CFR 
17.32. We recognize that what may qualify as enhancement is likely to 
vary due to regional, national, and local ecological realities.
    (7) Comment: Several commenters requested clarification on the 
criterion that ``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'' and how the Service will ensure range countries 
provide properly documented and verifiable information demonstrating 
consideration of using the elephants for in situ conservation programs, 
to augment extant wild populations, or to reintroduce to extirpated 
ranges. Specifically, a commenter stated the Service should require the 
following: (1) Identify by name the government official and agency and/
or park or area administrator contacted regarding an in situ 
conservation transfer, a wild elephant population augmentation project, 
and/or a reintroduction effort; (2) provide copies of correspondence 
with the government agency, person, or other entity administering the 
area; (3)

[[Page 22537]]

provide documentation to confirm that such outreach to potential in 
situ conservation, augmentation, and reintroduction programs both 
domestically and within the natural range of African elephants has been 
undertaken; and (4) include in its certification package written 
evidence as to why none of the options pursued were feasible. The 
commenters requested clarification about the methodologies regarding 
reproducible counting, surveying, or assessing elephant populations and 
recommended that if extrapolation is used to estimate elephant 
population size, underlying assumptions should be disclosed. 
Additionally, they suggested requiring the applicant to demonstrate 
that it has consulted with the IUCN African Elephant Specialist Group. 
The commenters suggested inserting language into the rule that would 
require range countries to demonstrate why in situ placements are 
unattainable for the elephant that has been approved for export. 
Lastly, it was suggested that the rule clarify that revenue a range 
country would make cannot be used as a basis to justify rejection of 
viable in situ or wild placements.
    Response: While the form of documentation suggested by the 
commenter would be a useful way to meet the criterion, the information 
may come in different forms from different range countries. To ensure 
we are not being overly burdensome on range countries while still 
receiving the appropriate information to make an informed conservation 
decision, in this final rule we are not overly prescriptive about the 
form of documentation provided. Should any additional clarification be 
required to complete review of an application, we may request this 
information from the range country. The rule requires prior receipt of 
properly documented and verifiable annual certification provided by the 
government of the range country that 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.
    (8) Comment: A commenter requested that the Service make clear in 
the final rule that the burden of providing the information for the 
requisite enhancement findings for range countries desiring to export 
live elephants and/or elephant trophies to the United States must fall 
on the range country and not on the individual permit applicant.
    Response: The burden to provide sufficient information to approve a 
permit application remains on the applicant, as with all ESA permits. 
The ESA states explicitly (in section 10(g)) that a person seeking the 
benefit of an exception bears the burden of demonstrating that the 
exception is 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 will not meet the 
criteria for an enhancement finding, and, consistent with both the 
previous regulations and the regulations in this final rule, cannot and 
will not be authorized for import into the United States. However, 
certain necessary information may be available only from the range 
country. This final rule seeks to streamline and improve transparency 
around the permitting process and better ensures the Service is 
provided necessary information when making decisions on applications. 
As the African elephant is listed as a threatened species under the 
ESA, import of African elephant sport-hunted trophies is limited to 
activity that enhances the survival of the species in the wild. This 
final rule clarifies the enhancement criteria for our assessment of an 
application for the import of an African elephant sport-hunted trophy. 
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.
    (9) Comment: A commenter recommended additional alternatives that 
do not include the assumption that trophy hunting promotes conservation 
and consider the beneficial economic impacts from non-consumptive 
activities.
    Response: The section 4(d) rule does not include an assumption that 
trophy hunting promotes conservation. We have previously described in 
the proposed rule and prior rulemakings how a well-managed trophy-
hunting program can contribute to conservation. We acknowledge that not 
all trophy hunting is part of a well-managed program, and we evaluate 
the import of sport-hunted trophies carefully to ensure that all CITES 
and ESA criteria are met. The clarification of the ESA enhancement 
criteria seeks to increase transparency with stakeholders when making 
this evaluation. 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 SSC 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 in the 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.
    (10) Comment: A commenter supported additional regulations along 
with expanding the Category One designation to include additional 
species and tying issuance of any permits to the status of the 
exporting or re-exporting party's CITES implementing legislation.
    Response: This rule relates to section 4(d) regulations for African 
elephant only. Considering use of the CITES Category One requirement 
for additional species is beyond the scope of this rulemaking.
    (11) Comment: Several commenters stated that the CITES Category One 
requirement has no conservation benefit and goes against the intention 
of CITES, because there is no correlation between a country having 
Category One status and the success of their conservation efforts. They 
suggested that the Service assist range countries to achieve Category 
One status, as the Service has for other countries, instead of what 
they consider to be a more punitive approach. Several commenters, 
including several range countries, expressed concerns about the impact 
of Category One requirements on range countries and the potential to 
prematurely prohibit trade and sport hunting if applied. Some 
commenters suggested that CITES Category One status be a minor 
consideration and not a requirement under the final rule.

[[Page 22538]]

    Response: We appreciate and understand the concern of several 
commenters, including several range countries, regarding implementation 
of the Category One requirement and the effect it may have on range 
countries and trade. Accordingly, we have finalized the CITES National 
Legislation Project Category One requirement to take effect after CITES 
CoP20 (anticipated to be held in 2025). We made this change to give 
range countries additional time to comply with this requirement and to 
ensure the requirement is supportive of countries making efforts to 
comply. As explained above, achieving Category One status of the CITES 
National Legislation Project is accomplished by meeting the basic 
requirements to implement CITES through the Party's adoption of 
national laws to implement the treaty. These requirements include 
designating at least one Management Authority and one Scientific 
Authority, prohibiting trade in specimens in violation of the 
Convention, penalizing such trade, and confiscating specimens illegally 
traded or possessed. Allowing imports only from countries that have 
achieved a Category One designation under the CITES National 
Legislation Project will improve confidence that the exporting or re-
exporting country has the capacity to appropriately implement 
requirements for trade in African elephants and enforce protections for 
the species.
    (12) Comment: A commenter recommended more transparency in elephant 
relocations and to publish the notice of the certification of 
applications and allow for public comment on the information.
    Response: We did not propose to, and this final rule does not, 
require publication of receipt of applications or permit decisions for 
African elephants. The final rule is consistent with other applications 
received for an ESA permit for a threatened species under 50 CFR 
17.32(a).
    (13) Comment: Many commenters stated that importing live or dead 
elephants into the United States does not enhance the species' 
conservation in the wild, as required by the ESA. They stated that the 
Service has no effective way to ensure that any import of an African 
elephant (or elephant trophy) promotes the conservation of the species 
and suggested the rulemaking prohibit or ban the import of both live 
elephants and their trophies.
    Response: Import of African elephants is already prohibited by the 
section 4(d) rule, subject to certain exceptions provided for in the 
regulations implementing the section 4(d) rule. This final rule amends 
several of those exceptions to the prohibition on import, as described 
herein, including to add an import permit requirement for live 
elephants, clarify and improve the transparency and efficiency of 
enhancement finding requirements for sport-hunted trophies, and include 
requirements related to the CITES National Legislation Project. 
However, as explained above and in the proposed rule, this final rule 
does not include a ban on import of African elephants without 
exception. In addition to being unprecedented for endangered or 
threatened species under the ESA, a complete ban on the import of live 
elephants 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, for example as a result of 
their impact on local agriculture, some amount of culling could 
continue to occur despite a ban. A ban of this nature would conflict 
with efforts to encourage well-managed elephant conservation efforts by 
range countries that are engaged in this trade. Rather, we intend the 
amendments to the section 4(d) rule 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. 
This rule 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.
    (14) Comment: A commenter stated that while the Service has 
statutory authority under the ESA to require permits for interstate 
commercial transfers of endangered or threatened species, it does not 
have authority to require permits for noncommercial transfer. In 
addition, the commenter believed that the Service's interpretation of 
``industry or trade'' within the definition of ``commercial activity'' 
is unlawful and will restrict the intended limitations on the use of 
live elephants in interstate commerce in the course of a commercial 
activity.
    Response: Potential amendments to the current definition of 
``industry or trade'' in 50 CFR 17.3 are outside the scope of this 
rulemaking. The regulations at 50 CFR 17.3 define ``industry or trade'' 
in the definition of ``commercial activity'' in section 3 of the ESA to 
mean ``the actual or intended transfer of wildlife or plants from one 
person to another person in the pursuit of gain or profit.'' Whether a 
proposed activity is ``in the course of a commercial activity'' 
involves considering whether, based on the facts, the proposed activity 
is ``in pursuit of gain or profit'' for either party to the intended 
transfer. While it is not entirely clear which activities with 
elephants are of concern to the commenter under the current definition, 
we take this opportunity to provide examples that would meet the 
definition of ``industry or trade'' under 50 CFR 17.3 in addition to 
buying, selling, or offering to buy or sell. Example: listed wildlife 
is held in captivity, and the owner offers to send the animal to a 
second owner of listed wildlife as a breeding loan in exchange for half 
of the offspring produced from the breeding loan. The wildlife has been 
held or used in the course of a commercial activity--the offer for a 
breeding loan in exchange for offspring produced from the breeding loan 
was an intended transfer of wildlife from one person to another person 
in the pursuit of gain or profit. The results of this example would be 
the same if the first owner had loaned the animal to the second owner 
for a week in exchange for monetary compensation. The results of this 
example would also be the same if the owner received nothing in return 
for the temporary transfer, but the second owner intended to gain or 
profit by selling or otherwise commercializing the offspring.
    (15) Comment: A commenter believed the Service is imposing its own 
animal-care standards on a zoo that may be receiving an animal for a 
noncommercial purpose.
    Response: 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 revised at CoP18, and related guidance on live elephants 
was adopted at CoP18 and CoP19 (all three of those CITES meetings took 
place after our finalization of amendments to the section 4(d) rule for 
African elephants in 2016) and present new reasons to reconsider our 
domestic regulation of live African elephants under the ESA. As 
explained above, to assist Parties in undertaking the obligations of 
CITES

[[Page 22539]]

Article III, paragraphs 3 b) and 5 b) of the Convention and paragraph 2 
a) of Resolution Conf. 11.20 (Rev. CoP18), CoP18 adopted Non-binding 
guidance for determining whether a proposed recipient of a living 
specimen is suitably equipped to house and care for it. Taxon-specific 
guidance for African elephants was subsequently developed by a working 
group of the CITES Animals Committee, 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, and endorsed by the CITES Standing Committee 
for consideration of CoP19. The CITES guidance was developed with 
participation by industry stakeholders, including the AZA, and the 
United States was a member of this working group. CoP19 subsequently 
considered and adopted the guidance, CoP19 Doc. 48; CoP19 Plen. Rec. 2 
(Rev. 1). According to this guidance, arrangements should be made to 
ensure that any subsequent sale, donation, or transfer of the animal 
(internationally or domestically) or of any animal born in the facility 
is also only to a facility suitably equipped to house and care for the 
specimen pursuant to the standards of CITES.
    (16) Comment: A commenter believed the regulations should go 
further and that the Service, AZA, other zoological associations, and 
individual zoological parks should phase out African elephants from 
public display. The commenter explained that this could be done by 
ceasing all breeding, allowing the animals to live out their lives in 
their current facilities or transferring them to well-managed 
sanctuaries, and prohibiting the future import of African elephants. 
Lastly, the commenter requested that the Service not consider 
exhibition or conservation education as enhancement.
    Response: We disagree with the suggestion to phase out African 
elephants on public display as such elephants play an important role in 
conservation awareness and efforts. The standards in this final rule 
for live African elephants are based on guidance from several CITES 
meetings. As explained previously, to assist Parties in undertaking the 
obligations of Article III, paragraphs 3 b) and 5 b) of the Convention 
and paragraph 2 a) of Resolution Conf. 11.20 (Rev. CoP18), CoP18 
adopted Non-binding guidance for determining whether a proposed 
recipient of a living specimen is suitably equipped to house and care 
for it. CoP19 adopted further taxon-specific Non-binding 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. According to this guidance, arrangements 
should be made to ensure that any subsequent sale, donation, or 
transfer of the animal (internationally or domestically) or of any 
animal born in the facility is also only to a facility suitably 
equipped to house and care for the specimen.
    (17) Comment: A commenter opined that the only facilities that 
should be considered ``suitably equipped'' to house live African 
elephants are accredited sanctuaries, as these facilities specialize in 
rehabilitating abused and traumatized elephants, while providing 
conditions and care aimed at restoring both physical and psychological 
health.
    Response: ``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. The 
evaluation for permits for live African elephants under this final rule 
will consider the same criteria and requirements found in 50 CFR 23.65 
and applied during import of a live African elephant. This incremental 
increase in requirements for activities with live African elephants is 
well-tailored to the conservation needs of the species in light of 
current CITES guidance and recommendations.
    (18) Comment: A commenter suggested the Service clarify when a 
special purpose permit would be needed for transfer of a live African 
elephant. Specifically, they pointed out a potential loophole in the 
proposed rule: if the same person or organization has multiple 
facilities, they would not need a special purpose permit even if some 
of their facilities did not meet the standards outlined in the proposed 
rule. Additionally, they questioned if a special purpose permit would 
be needed if an elephant was leased to another person.
    Response: We clarified the language in this final rule. Our 
intention in the proposed rule was to ensure that any time an African 
elephant is moved, the intended recipient must be suitably equipped to 
house and care for the specimen at the location where it is to be 
housed and cared for, regardless of the nature of the transfer. We have 
revised the language in proposed paragraph (e)(10)(iv) to clarify that 
each special permit to transfer an elephant must include a condition 
that the elephant and its offspring will not be sold or otherwise 
transferred to another person or location without a special purpose 
permit. Adding the requirement that the permittee be authorized by 
permit to transfer an animal to another location (e.g., to a facility 
located on a different premises, or pursuant to a temporary loan or 
lease) adds clarity to the permit's condition.
    (19) Comment: A commenter suggested that the final rule state that 
the Service must seek advice from the Animals Committee about whether 
the proposed transfer is a suitable ``exceptional circumstance.'' They 
suggested that if the Animals Committee concludes that a proposed 
transfer is not an exceptional circumstance, the Service should not 
allow the import.
    Response: The comment refers to the CITES process under Resolution 
Conf. 11.20 (Rev. CoP18) for export outside the species' natural and 
historical range in Africa of wild-sourced live African elephants from 
a population with an ``appropriate and acceptable destinations'' 
annotation. Additionally, at CoP19, the Conference of the Parties 
adopted Decision 19.168, which temporarily extends the same process to 
all exports of wild-sourced live African elephants outside the species' 
natural and historical range in Africa. The Service would seek advice 
from the Animals Committee, and consider any advice provided, in 
reaching a decision on an application to import live elephants subject 
to an applicable CITES process. As explained in our proposed rule, the 
U.S. Government's understanding of the process established by 
Resolution Conf. 11.20 (Rev. CoP18), paragraph 1, is that, under the 
resolution, and currently under Decision 19.168, 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 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' decisions. 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 to allow the trade.
    (20) Comment: A commenter stated that the Service did not include 
several aspects covered by the CITES 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 new guidance 
agreed at CITES CoP19 specific to African elephants. The commenter 
suggested that the rule include all

[[Page 22540]]

guidance, as well as in subsequent revisions to 50 CFR part 23.
    Response: As previously noted, CoP18 adopted Non-binding guidance 
for determining whether a proposed recipient of a living specimen is 
suitably equipped to house and care for it, and CoP19 adopted further 
taxon-specific Non-binding 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. This 
guidance will aid the Service in determining whether live African 
elephants are going to facilities that are suitably equipped to house 
and care for them when it makes findings in accordance with 50 CFR 
23.65. We note that our regulations in 50 CFR 23.65 enable us to 
consider the factors in the non-binding guidance adopted by the Parties 
at CoP18 and CoP19, as applicable to a specific situation when making a 
suitably equipped to house and care for finding. However, further 
amendments to 50 CFR 23.65 are outside the scope of this rulemaking and 
may be considered in subsequent revisions to 50 CFR part 23.
    (21) Comment: In relation to the needs of elephants in captivity, 
several commenters pointed to reports on African elephant biology, 
ethology, and social structure and provided literature that states 
African elephants are wide-ranging, vastly intelligent, sentient beings 
with a highly organized social structure who form strong family bonds 
that can last a lifetime. The commenters stated that African elephants 
require access to large, complex, stimulating ecological and social 
environments, and the freedom to exercise choice over their foraging 
options and companions. The commenters suggested that live African 
elephants have 100 hectares or more of diverse, natural habitat so 
individual elephants have the opportunity to live fulfilling lives.
    Response: The needs of elephants in captivity, including space and 
behavior, are considered and addressed in our finding as to whether or 
not the proposed recipient is suitably equipped to house and care for 
the live elephant(s), made in accordance with the criteria and 
requirements in our CITES implementing regulations at 50 CFR 23.65.
    (22) Comment: Several commenters believed the African elephant care 
standards in the proposed rule are unnecessary as the requirements are 
already covered by CITES provisions. In addition, they claimed there is 
no evidence of an ESA concern, and they believed the regulations would 
be an unnecessary regulatory burden and the Service would be 
implementing regulations beyond its scope and mission if it is unable 
to show a conservation need that has arisen since the finding in its 
2016 rulemaking. They believed there is no African elephant 
conservation-related basis for including the additional provisions 
related to import and domestic holding and movement of elephants. In 
addition, the commenters believed the additional provisions will likely 
impede movements of elephants for breeding purposes to support a 
sustainable population in human care. They stated that the U.S. 
Department of Agriculture (USDA) has a clear mandate to implement and 
enforce the Animal Welfare Act (AWA; 7 U.S.C. 2131 et seq.), which they 
believe is adequate to ensure that elephants are well cared for in the 
United States. They stated that the proposed regulations may undermine 
African elephant conservation because the Service cannot keep up with 
permitting responsibilities and the proposed regulations will add to 
the burden. Lastly, they stated that if the Service does finalize the 
regulations, they should require AZA accreditation as prima facie 
evidence that these standards are already being met.
    Response: The standards in the proposed rule for live African 
elephants are based on guidance from several CITES meetings. 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 (both of those CITES meetings took place after 
our finalization of amendments to the section 4(d) rule for African 
elephants in 2016) and present new reasons to reconsider our domestic 
regulation of live African elephants under the ESA.
    To assist Parties in undertaking the obligations of Article III, 
paragraphs 3 b) and 5 b) of the Convention and paragraph 2 a) of 
Resolution Conf. 11.20 (Rev. CoP18), CoP18 adopted: Non-binding 
guidance for determining whether a proposed recipient of a living 
specimen is suitably equipped to house and care for it. To address 
taxon-specific considerations, CoP19 further adopted: Non-binding 
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. According to this guidance, 
section A, paragraph 8, ``arrangements should be made to ensure that 
any subsequent sale, donation or transfer of the animal 
(internationally or domestically) or of any animal born in the facility 
is also only to a facility suitably equipped to house and care for the 
specimen.'' Additionally, we find that it is appropriate to adopt the 
``suitably equipped to house and care for'' provisions outlined in the 
proposed rule as USDA does not conduct ``suitably equipped to house and 
care for'' findings under the AWA. Lastly, we do not agree that 
requiring AZA accreditation as prima facie evidence that the standards 
are already being met would be adequate in implementing the CITES 
guidance. As explained in the CITES guidance, ``[m]embership in a 
recognized Zoo association can provide further reassurance that the 
destination adheres to the standards and guidelines of that association 
and helps to exchange males to prevent inbreeding, but it is as such 
neither a pre-condition for assessment of an appropriate destination, 
nor a proof that the facility is an appropriate and acceptable 
destination.'' We will utilize the CITES guidance for determining 
whether a proposed recipient of a living specimen is suitably equipped 
to house and care for it. This guidance will be used with the factors 
found in 50 CFR 23.65. As noted in the proposed rule, U.S. facilities 
that have previously been authorized to import live elephants under 
CITES have complied with ``suitably equipped to house and care for'' 
requirements at 50 CFR 23.65.
    The Service expects that any facility wishing to accept a 
transferred live elephant will take necessary steps also to comply with 
these standards. For any facility that complies with these standards, 
these new permitting requirements will impose a small recordkeeping and 
fee burden on these facilities and will 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. This rulemaking addresses more than AZA facilities 
and applies to transfer of African elephants by any individual or 
entity in the United States, including both AZA and non-AZA 
institutions. According to the AZA, of the approximately 2,800 animal 
exhibitors licensed by the USDA across the country, fewer than 10 
percent are AZA-accredited.

[[Page 22541]]

    (23) Comment: A commenter opined that the ``suitably equipped to 
house and care for'' standards are unnecessarily rigid and African 
elephant welfare is less about available space and more about how that 
space is utilized. They mentioned several studies that they claimed 
prove that good elephant welfare is not about facility space but about 
individualized care for specific animals within specific circumstances.
    Response: Living-space requirements fall outside of scope of this 
rule. However, we will utilize the CITES guidance for determining 
whether a proposed recipient of a living specimen is suitably equipped 
to house and care for it. This guidance will be used with the factors 
found in 50 CFR 23.65.
    (24) Comment: A couple commenters stated that the proposed rule 
does not hold zoos accountable to meet the necessary standards for 
providing a benefit to elephants. They suggested that zoos must submit 
evidence that their elephant exhibits measurably improve public 
education and lead to actions promoting conservation of the species, to 
prove their interests are noncommercial.
    Response: The section 4(d) rule requires issuance of an import 
permit prior to import of elephants into the United States, which will 
require zoos or other importers or exporters to demonstrate a 
conservation benefit to elephants in the wild in order to support an 
enhancement finding for the proposed activity. While the Service could 
have gone further under the authority of the ESA, for example by also 
requiring a separate enhancement finding for each transfer, as is 
required for interstate commerce in endangered wildlife, we found that 
the more incremental increase in requirements in this rule was well-
tailored to the conservation needs of the species in light of current 
CITES recommendations. The needs of elephants in captivity are 
considered and addressed in our finding as to whether the proposed 
recipient is suitably equipped to house and care for the live 
elephant(s), made in accordance with the criteria and requirements in 
our CITES implementing regulations at 50 CFR 23.65.
    (25) Comment: A commenter suggested the Service add several 
additional parameters regarding live African elephants and recommended 
that the Service add specific criteria tailored to the species 
regarding food and water requirements, access to an off-exhibit area, 
staff training and experience, and suitable veterinary care. The 
commenter urged the Service to require that elephants not be housed 
alone and that offspring remain with their mothers until they are 
naturally weaned. The commenter requested the Service not allow the use 
of bullhooks, also known as goads. The commenter urged the Service to 
consider climate conditions when assessing the sufficiency of the space 
available for African elephants under 50 CFR 23.65(c)(1). The commenter 
suggested the Service make a finding that the proposed activity is not 
for primarily commercial purposes, relying upon the criteria set forth 
under 50 CFR 23.62.
    Response: The needs of elephants in captivity are considered and 
addressed in our finding as to whether the proposed recipient is 
suitably equipped to house and care for the live elephant(s), made in 
accordance with the criteria and requirements in our CITES implementing 
regulations at 50 CFR 23.65. In addition, to assist Parties in 
undertaking the obligations of Article III, paragraphs 3 b) and 5 b) of 
the Convention and paragraph 2 a) of Resolution Conf. 11.20 (Rev. 
CoP18), CoP18 adopted Non-binding guidance for determining whether a 
proposed recipient of a living specimen is suitably equipped to house 
and care for it. CoP19 adopted further taxon-specific Non-binding 
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. This guidance will be used 
with the factors found in 50 CFR 23.65.
    (26) Comment: A commenter believed that the rule will undermine 
conservation efforts and hamper the ability of zoos to effectively 
manage animal groups to sustain a genetically diverse and biologically 
sound population. The commenter stated that transfers of live elephants 
domestically is frequently done for breeding purposes related to 
species survival plans, that identify population goals and 
recommendations to manage a genetically diverse, demographically 
varied, and biologically sound population, and to support conservation 
and education efforts related to these species.
    Response: We understand the importance of these programs to support 
conservation and education efforts related to African elephants and 
their habitat. The rule will not prohibit those programs but will 
ensure that live elephants are going only to facilities that are 
suitably equipped to house and care for them, helping 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 by reducing the overall number of imports to maintain elephants in 
captivity in the United States.
    (27) Comment: A commenter recommended stricter regulations on trade 
in elephant parts (non-ivory, trophy, or live elephants) that will 
include an ESA permit. The commenter provided information regarding the 
demand for other products including elephant hides that may negatively 
impact the survival of the species.
    Response: We disagree with the concern that the limited legal trade 
in elephant parts and products other than ivory and sport-hunted 
trophies may negatively impact the survival of African elephants. We 
are aware of no information to indicate that legal trade for commercial 
use in compliance with CITES of elephant parts and products other than 
ivory and sport-hunted trophies has had any effect on the rates or 
patterns of illegal killing of elephants and the illegal trade in 
ivory. However, the CITES National Legislation Project contains several 
requirements related to enforcement actions due to illegal trade. By 
allowing imports of parts and products only from Category One 
countries, with limited exceptions for law enforcement purposes and 
genuine scientific purposes, we are ensuring that parts and products 
are imported into the United States only by countries able to fully 
implement the CITES Treaty.
    (28) Comment: A commenter questioned the applicability of the rule 
to the progeny of wild-caught African elephants or to the movement of 
biological samples, including semen. The commenter opined that the 
public cannot properly comment on the proposed rule without further 
clarification on these points.
    Response: The preamble to the proposed rule and this final rule 
provide information regarding the trade in live African elephants and 
their offspring, including care of live elephants after import and 
other permitted transfers. Parts and products other than ivory and 
sport-hunted trophies continue to be excepted from the ESA permitting 
requirement under the rule. However, the import of those items will be 
restricted to Category One countries under the CITES National 
Legislation Project, meaning they will be imported, with limited 
exceptions for law enforcement purposes and genuine scientific 
purposes, only from countries that have met the requirements to 
implement the CITES Treaty and only in accordance with CITES permitting 
requirements.

[[Page 22542]]

    (29) Comment: A commenter expressed concern that there is no 
recognition of the benefit that sport-hunting fees can have on the 
construction of schools, medical facilities, water sources, sewage, or 
other improvements in living conditions or development of any kind, and 
that the Service specifies only what the community must add regarding 
the conservation of elephants. The commenter requested that the Service 
expand the requirements for use of funds derived from a sport hunt if 
enhancement has been met.
    Response: Our intent under the section 4(d) rule is to clarify the 
enhancement standards and increase transparency with stakeholders. 
Through this rule, we are clarifying what is considered during 
enhancement evaluation, and including a non-exhaustive list of concrete 
examples of how funds derived from activities with African elephants 
should be used significantly and positively to contribute to African 
elephant conservation. In this final rule, in consideration of comments 
received on the need for additional flexibility for range countries and 
local communities, we have modified the enhancement criterion that 
outlines how funds derived from live elephant and sport-hunted trophy 
imports should be applied toward African elephant conservation. To 
allow us greater flexibility in determining if enhancement has been 
satisfied based on the information available, we have replaced the word 
``primarily'' with ``significantly'' as that term better represents the 
requirement that funding be provided in an amount that will lead to 
meaningfully enhancing the survival of African elephants in the wild. 
While achieving meaningful enhancement will often require that the top 
use of funds derived from activities with elephants be directed to 
elephant conservation, we are providing more flexibility for applicants 
and range countries to demonstrate the significance of the amount of 
funds put toward African elephant conservation when determining whether 
the activities enhance the survival of the species in the wild.
    (30) Comment: Several commenters recommended that the Service 
withdraw the rulemaking because they believe the Service failed to 
consult meaningfully with range countries. The commenters stated that 
the Service did not meet procedural obligations for consultation under 
CITES Resolution Conf. 6.7 on Interpretation of Article XIV, paragraph 
1 prior to adopting stricter domestic measures under the ESA. The 
commenters stated that the Service failed to consult with range 
countries on how the proposed rule would affect the range countries' 
conservation and management programs of elephants, elephant habitat, 
human-wildlife conflict, and community-based natural-resources-
management programs.
    Response: We disagree with the commenters that there are legal 
obligations for consultation under CITES Resolution Conf. 6.7 and that 
we have failed to consult meaningfully with range countries. While the 
recommendations in CITES Resolution Conf. 6.7 are not legally binding, 
the United States makes a concerted effort to implement the CITES 
Resolutions because we acknowledge that they represent the 
interpretation and longstanding guidance of the CITES Conference of the 
Parties for effective implementation of the Convention. We note that 
under article XIV, paragraph 1 of the Convention, each Party retains 
the right to adopt stricter national measures that regulate or prohibit 
the import, export, taking, possession, or transport of any CITES 
species. In Resolution Conf. 6.7, the Parties recommend that prior to 
taking such actions for non-indigenous species as are allowed under 
article XIV, paragraph 1, Parties ``make every reasonable effort to 
notify the range countries of the species concerned at as early a stage 
as possible prior to the adoption of such measures, and consult with 
those range countries that express a wish to confer on the matter.''
    In promulgating this rule, we have made every reasonable effort to 
notify range countries and have consulted with range countries that 
have expressed a wish to confer on the matter, following the text, 
spirit, and intent of the Resolution during the public-comment process 
for the proposed rule. Publishing a proposed rule does not inhibit the 
consultation process. Rather, it gives the range countries, and the 
public, draft regulations and agency reasoning on which to comment. 
This rulemaking comment process often leads to a more robust 
consultation process and, as here, improves the final rule adopted by 
the agency. During the public-comment period on the proposed rule, 
which was originally open for 60 days and then extended for an 
additional 60 days (for a total of 120 days), we hosted a virtual 
public meeting and also accepted written comments. During the public-
comment period, we offered to conduct individual African elephant range 
country consultations. Several range countries took us up on our offer, 
and we held consultations for every range country that made a request. 
Noting the above, we conclude that we have meaningfully consulted with 
range countries.
    (31) Comment: A commenter stated that proprietary operator and 
government information should not be broadcasted.
    Response: The rule does not require publication of notices of 
receipt of applications or permit decisions, consistent with other 
applications received for an ESA permit for a threatened species under 
50 CFR 17.32(a).
    (32) Comment: A commenter opined that any revisions to the African 
elephant section 4(d) rule should only apply prospectively to 
applications to import a sport-hunted trophy after the effective date 
of the new rule.
    Response: We have amended the final rule accordingly, so the new 
regulations at 50 CFR 17.40(e)(6)(ii) pertaining to import of sport-
hunted trophies will apply where the hunt date is on, or after, the 
effective date of this rule.
    (33) Comment: A commenter stated that any standard that delays the 
processing of trophy imports or could be used as an angle in a lawsuit 
to support anti-hunting arguments against hunting and its benefits 
should be removed from the rule.
    Response: The intent of the rule is to clarify the enhancement 
standards and increase transparency with stakeholders. The standards in 
the rule clarify what is considered during enhancement evaluation. By 
requiring annual certification, information will be provided by the 
range country on an annual basis and will improve application 
evaluation efficiency.
    (34) Comment: Several commenters urged the Service to strengthen 
the enhancement permit requirements for sport-hunted trophies. 
Suggestions included requiring scientific evidence and methodology for 
how the elephant trophy will enhance the survival of the species; 
requiring specific demographic information on the local, neighboring, 
and range-wide populations; requiring a range country to have 
scientifically based population data and a funded plan to continue 
monitoring for population trends; reviewing of any CITES trade 
suspensions; requiring joint management plans between countries with 
shared elephant populations that are subject to trophy hunting; 
ensuring regulating governments follow the rule of law concerning 
African elephant conservation and management; ensuring range countries 
have the capacity to reliably ensure that trophies have been lawfully 
taken; and denying any permit application if a hunt was completed 
without the presence of a guide who is

[[Page 22543]]

properly licensed by the host country. Additional recommendations 
included requiring that permit applications report the hunting methods 
used; the amounts paid for hunting services, permits, and any other 
fees; information on the payees; and information on anyone else 
involved in the hunt (guides, observers, etc.) and their affiliations 
and licensures.
    Response: We have carefully considered the criteria and conclude 
that the standards we published in the proposed rule provide us with 
the data needed to make a conservation-based decision while not being 
overly burdensome, particularly for range countries. We recognize that 
the information we have requested may come in different forms from 
different range countries. Should any additional clarification be 
required to complete review of an application, we may request 
additional information from the range country. The purpose of this rule 
is not to disincentivize trophy hunting when it is conducted within the 
bounds of a well-regulated, scientifically supported management system. 
Rather, the purpose of this proposed rule is to clarify what factors 
are considered as part of the determination of whether the import of an 
African elephant sport-hunted trophy meets the enhancement standard. We 
consider all relevant conservation threats when making enhancement 
findings and conduct a robust science-based analysis of species 
conservation before issuing permits for the import of ESA-listed sport-
hunted trophies. The information provided to address the certification 
criteria must be scientifically based and verifiable, as reflected in 
the rule, which requires prior receipt of documented and verifiable 
certification related to each of the certification criteria.
    (35) Comment: Several commenters were concerned that the 
requirements for determining elephant population and status trends over 
very large land areas be updated annually by range countries via aerial 
survey were expensive, unreliable, and unreasonable. They stated that 
annual monitoring is not needed for such a long-lived species, and far 
better systems for monitoring the sustainability of hunting through 
triangulation and adaptive management exist. They suggested the Service 
use trophy quality as a metric and not population status. They 
requested that, at a minimum, the Service extend the required 
population surveys to every 5 years.
    Response: Our intent under this rule is to clarify the enhancement 
standards and increase transparency with stakeholders. Through this 
rule, we are clarifying what we consider during enhancement evaluation, 
by requesting the information as part of the annual certification 
process. By requiring certification, this information will be provided 
by the range country on an annual basis and will improve application 
evaluation efficiency. We already consider the information requested as 
part of the annual certification process in the processing of 
applications for sport-hunted trophies as part of the enhancement 
finding required for a threatened species import permit under 50 CFR 
17.32. We recognize that what may qualify as enhancement is likely to 
vary due to regional, national, and local ecological realities and will 
not be uniform across these scales. We disagree with the commenter's 
assessment that population-trend data is not necessary for determining 
the conservation status of a species. We agree that this data should 
not be analyzed by itself and additional circumstances must be 
considered.
    In the process of determining enhancement, we are evaluating 
whether trophy hunting (and subsequent import), as a conservation 
measure, is likely to reduce the threat of extinction facing the 
species. To make this determination, we must fully understand the 
conservation status of the African elephant population within a range 
country, including population status or trend data related to the 
species as a whole. We are not requiring that each criterion be updated 
annually if doing so is not appropriate or feasible. If there are no or 
minimal changes from one year to the next, the certification from the 
range country to the Service can reflect this status. Rather, under 
this rule, we will require a verifiable certification that the criteria 
have been met. If our evaluation determined that the requirements were 
no longer met, we will work with the range country to communicate and 
address any concerns. We will continue to consider all findings on an 
application-by-application basis and take into account the conservation 
realities of the hunt area and the individual hunter.
    (36) Comment: Several commenters believed that language requiring 
African elephant populations needing to be ``stable or increasing,'' as 
well as sufficiently large to sustain sport hunting at the level 
authorized by the country, is vague and unreasonable in certain 
circumstances, as some areas may require increased elephant quotas, 
more protection, or elephants regularly traveling between multiple 
countries. The commenters provided examples such as overpopulation of 
African elephants, which are degrading habitat, in some areas and that 
in some of these areas increasing or maintaining the size of the 
population would not necessarily provide enhancement for the 
conservation of the species.
    Response: We have amended the final rule accordingly. We have 
revised the enhancement criteria that requires African elephant 
populations in a range country to be stable or increasing for import of 
live African elephants and sport-hunted trophies. We have replaced the 
term ``stable or increasing'' with ``biologically sustainable.'' The 
term ``biologically sustainable'' gives us flexibility when making our 
enhancement determinations and allows us to consider circumstances 
where specific offtake is biologically sustainable, even if the overall 
population in the range country is not currently assessed as stable or 
increasing, such as possible scenarios where African elephants are 
overpopulated and have a negative impact on habitat and biodiversity. 
The clarification of the enhancement criteria supports the evaluation 
on whether the proposed activity will contribute toward the recovery of 
the species in the wild. The import of each specimen must meet this 
standard.
    (37) Comment: A commenter disagreed with the Service's proposed 
evaluation of habitat quality as enhancement criteria. The commenter 
stated that there are too many factors to consider, some of which 
cannot be controlled by communities or range countries.
    Response: We disagree. The analysis of habitat quality is an 
essential metric for determining the conservation status of a species 
in the wild. This information can be acquired using scientifically 
supported methods and is a common metric used in management decisions 
across the world. Similarly, we understand that communities and private 
landowners are essential for the conservation of African elephant 
habitat. However, this relationship falls under a legal framework that 
is regulated and enforced by a governmental body. We must ensure that 
the activity performed falls within this legal framework and is 
approved by a regulating government.
    (38) Comment: Several commenters expressed concern that the 
regulations for sport-hunted trophies will reduce beneficial trade and 
not benefit African elephants. The commenters explained that, given the 
rigor of CITES, the proposed regulations are redundant and unnecessary. 
The commenters stated that the Service has not provided

[[Page 22544]]

scientific or economic justification and the regulations will undermine 
conservation incentives, since hunting revenues benefit range countries 
and African elephant conservation.
    Response: Our intent under the new regulations for sport-hunted 
trophies is to clarify the enhancement standards and increase 
transparency with stakeholders. Through these regulations, we are 
clarifying what we consider during enhancement evaluation by requesting 
the information as part of the annual certification process. The 
certification requirement will lead range countries to provide this 
information on an annual basis, improving application evaluation 
efficiency. We already consider the information requested as part of 
the annual certification process when we process applications for 
sport-hunted trophies as part of the enhancement finding required for a 
threatened species import permit under 50 CFR 17.32. We acknowledge 
that well-managed 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 in the 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.
    (39) Comment: A commenter asked the Service to further clarify the 
term ``funds derived'' in paragraph (e)(6)(ii)(G) of the proposed rule 
and recommended that the term include all funds associated with trophy 
hunting, including permit fees, hunting guide costs, and any other 
amounts paid by trophy hunters and any other individuals or 
organizations involved with the hunt. The commenter also suggested that 
the term include the gross amounts, and not just net profits derived 
from the hunt. Lastly, the commenter recommended that the Service 
require that 100 percent of ``funds derived'' be applied to African 
elephant conservation.
    Response: Funds derived from sport-hunting is broadly defined. We 
will consider any and all verifiable information provided in our 
determination of whether the funds contribute to African elephant 
conservation. We expect that revenues generated from the activity of 
the removal of the African elephant from the wild will be reinvested 
into the conservation of the species and combat threats to the 
populations within the range country. Each range country will be 
required to provide documentation to explain how this reinvestment is 
achieved. However, it is unreasonable to expect that all funds be 
applied to African elephant conservation. Such a requirement would be 
counterproductive to elephant conservation as it could remove financial 
incentive for local communities and private landowners to conserve and 
protect African elephant populations or habitat.
    (40) Comment: A commenter suggested that the Service develop a 
fair-chase standard and require trophy import permit applicants to 
demonstrate that a given hunt meets this standard. The commenter 
suggested that failure to meet this standard should result in denial of 
the permit application.
    Response: The Service does not authorize or prohibit hunting in 
foreign countries. Range countries will decide whether to establish a 
fair-chase standard. To the extent that management measures (including 
application of fair-chase standards) affect the survival of the species 
in the wild, we will consider them as part of our overall enhancement 
determination.
    (41) Comment: A commenter suggested that the Service should require 
range countries to report at least 10 years of historical elephant 
conservation funding, the origins of that funding, how that funding was 
used, and the successes and failures of conservation projects. The 
commenter suggested that the Service require that the historical, 10-
year average of hunting revenues do not exceed more than five percent 
of the overall conservation budget.
    Response: The rule requires that information provided as part of 
the annual certification be verifiable, including information on funds 
contributed to African elephant conservation. This will ensure we have 
the data needed to make a conservation-based decision while not being 
overly burdensome, particularly for range countries. We recognize that 
the information we have requested may come in different forms from 
different range countries. Should we require any additional 
clarification to complete review of an application, we may request 
additional information from the range country. Additionally, we do not 
see a benefit of limiting the conservation value received through 
trophy hunting.
    (42) Comment: A commenter recommended that the Service clarify what 
certifications it will require from the range countries and list the 
factors it will use to independently determine whether the specific 
import of an elephant trophy will enhance the survival of the species. 
The commenter recommended that the Service make the findings and its 
sources of information used to make the decision available to the 
public.
    Response: We recognize there may be some variability in how range 
countries deliver the requested information and that the information 
may come in different forms from different range countries. To ensure 
that we are not being overly burdensome on range countries while still 
receiving the appropriate information to make an informed conservation 
decision, in this final rule we are not overly prescriptive about the 
form of documentation provided. As previously noted, the burden to 
provide sufficient information to approve a permit application remains 
on the applicant, as with all ESA permits. 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 will 
not meet the criteria for an enhancement finding and, consistent with 
both the previous regulations and these final regulations, cannot and 
will not be authorized for import into the United States. However, 
certain necessary information may be available only from the range 
country. This final rule seeks to streamline and improve transparency 
around the permitting process and will better ensure that the Service 
is provided necessary information when making decisions on 
applications. The rule does not require publication of receipt of 
applications or permit decisions, consistent with other applications 
received for an ESA permit

[[Page 22545]]

for a threatened species under 50 CFR 17.32(a).
    (43) Comment: A commenter questioned what evidence the Service 
would require as proof that the trophies have been legally taken from a 
specific population.
    Response: We recognize that what may qualify as evidence that a 
trophy was legally taken is likely to vary across range countries. We 
will consider all documentation provided by the range country and 
applicant, which may include but is not limited to, laws, regulations, 
and corresponding required documentation such as an issued permit.
    (44) Comment: A commenter questioned the requirement that 100 
percent of African elephant meat be used by local communities, 
believing that this requirement is too stringent and would require the 
range countries to create an expensive information-collection system at 
local levels.
    Response: We recognize there are situations where hunting occurs 
and there are no nearby inhabitants or other circumstances where it 
would be inappropriate to include this requirement. We also recognize 
that this form of support to local communities, if applicable, may also 
be addressed as a method used to prevent or mitigate human-elephant 
conflict under paragraph (e)(6)(ii)(G)(7). Accordingly, we have removed 
proposed paragraph (e)(6)(ii)(G)(8) that required elephant meat be 
distributed to local communities from the final regulations.
    (45) Comment: Several commenters opined that the proposed 
regulations are the first step in banning sport hunting and will hurt 
African elephant conservation efforts by imposing unnecessary, 
counterproductive, and overly burdensome sport-hunting requirements 
that will decrease conservation funding to range countries. The 
commenters provided examples where they believe African elephants are 
overpopulated and have a negative impact on biodiversity and climate 
change. The commenters stated that hunting has a negligible impact on 
African elephant populations and the Service is trying to impose 
unnecessary regulations.
    Response: We did not propose to ban sport-hunted trophies of 
African elephants, and this final rule does not impose such a ban. We 
recognize that what may qualify as enhancement is likely to vary due to 
regional, national, and local ecological realities. We do not require 
that each criterion be updated annually, if doing so is not appropriate 
or feasible. If there are no or minimal changes from one year to the 
next, the certification from the range country to the Service can 
reflect this situation. Rather, under this rule, we require a 
verifiable certification that the criteria have been met. If our 
evaluation determines that the requirements are no longer being met, we 
will work with the range country to communicate and address any 
concerns. All findings will continue to be considered on an 
application-by-application basis and take into account the conservation 
realities of the hunt area and the individual hunter.
    (46) Comment: A commenter stated that the proposed rule disregards 
the ESA section 9(c)(2) exemption.
    Response: We disagree. As explained in the proposed rule, and above 
in the preamble to this rule, 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 exception from threatened species permitting requirements for 
qualifying imports of some threatened species that are also listed 
under CITES Appendix II. The presumption of section 9(c)(2) and 50 CFR 
17.8 is overcome through issuance of a section 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)). 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].''
    (47) Comment: Multiple commenters requested that the Service 
eliminate or suspend the two-elephant-per-year limit in the current 
rule. They stated that the two-per-year limit adds to permitting delay 
because the first two must be imported before the applicant can file 
another application. Specifically, they requested that the Service 
revise the African elephant section 4(d) rule to four elephants per 
calendar year to cover 2 successive years of double hunts. The 
commenters requested that the two-per-year rule be suspended until 2 or 
more years after the permitting backlog is addressed and recommended a 
Director's Order to suspend the 2-per-year rule effective immediately.
    Response: We have analyzed the information in the petition 
submitted by Conservation Force (summarized earlier in this preamble) 
and the public comments received as part of this rulemaking. We 
conclude that the limit of the provision regarding two African elephant 
trophies import permits per calendar year, which originally published 
in the 2016 revision to the African elephant section 4(d) rule, remains 
appropriate. We do acknowledge some of the petitioner's points 
regarding delay in the permitting process but conclude that the 
original reasoning for the regulation remains intact and is unrelated 
to delay in permit processing. 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). We do recognize that the application-by-application 
process involves additional information requirements, time, and staff 
resources to complete the review of each application. Other factors 
have also led to delays in permit processing in recent years, including 
but not limited to the Covid-19 pandemic.
    With regard to the annual import limit, we limited the number of 
sport-hunted African elephant trophies that may be imported into the 
United States to address a small number of circumstances in which U.S. 
hunters have participated in elephant culling operations and imported, 
as sport-hunted trophies, a large number of elephant tusks from animals 
taken as part of the cull. This practice has

[[Page 22546]]

resulted, in some past cases, in the import of commercial quantities of 
ivory as sport-hunted trophies. Sport hunting is meant to be a 
personal, noncommercial activity, and engaging in hunting that results 
in acquiring quantities of ivory that exceed what would reasonably be 
expected for personal use and enjoyment is inconsistent with sport 
hunting as a noncommercial activity.
    In evaluating an appropriate limit for personal use, we considered 
actions taken by the CITES Parties in recognition of the need to ensure 
that imports of certain other hunting trophies are for personal use 
only. In three different resolutions, the CITES Parties have agreed to 
limit annual imports of hunting trophies of leopards (no more than 
two), markhor (no more than one), and black rhinoceros (no more than 
one). All three of the resolutions containing these annual import 
limits (Resolution Conf. 10.14 (Rev. CoP19) on Quotas for trade in 
leopard hunting trophies and skins for personal use, Resolution Conf. 
10.15 (Rev. CoP14) on Establishment of quotas for markhor hunting 
trophies, and Resolution Conf. 13.5 (Rev. CoP18) on Establishment of 
export quotas for black rhinoceros hunting trophies) recommend, among 
other things that the Management Authority of the country of import be 
satisfied that the trophies are not to be used for primarily commercial 
purposes if they are being imported as personal items that will not be 
sold in the country of import and the owner imports no more than one or 
two (depending on the species) trophies in any calendar year.
    Based on past practice under CITES and the number of elephant 
trophies imported each year by the vast majority of U.S. hunters who 
engage in elephant hunts, two trophies per hunter per year is an 
appropriate upper limit for the personal use of the hunter, and we 
conclude that this limit continues to reasonably address our concern. 
We do not have information to indicate that allowing the import of two 
trophies per hunter per year would result in import of commercial 
quantities of ivory or would not be appropriate for personal use and 
therefore have also not proposed to further reduce the annual import 
limit.
    (48) Comment: A commenter stated that, with paragraph (e)(10)(ii), 
the Service would allow non-detriment findings made by elephant-
exporting countries to subsume its own enhancement findings. The 
commenter believed this provision will serve to expand the capture and 
trade of live elephants.
    Response: We intend the amendments in this rule to the current 
section 4(d) regulations 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. The amendments 
also ensure that we do not allow imports in circumstances where 
elephants are not well-managed and better ensure that any live 
elephants in trade and their offspring are well taken care of 
throughout their lifetimes. Our enhancement finding, our non-detriment 
finding (where applicable for Appendix-I elephants), and the exporting 
country's non-detriment finding are each separate determinations and 
are not conflated.
    (49) Comment: Multiple commenters requested clarity regarding the 
timing and locations of determinations of captive-elephant pregnancy 
status. One commenter believed the annual certification requirement 
that regulating authorities can ensure that no live African elephants 
to be imported are pregnant (which the commenter refers to as ``the 
pregnancy certification'') is a violation of CITES transport guidelines 
(based on the International Air Transport Association's Live Animal 
Regulations (IATA LAR)), which advise against the transport of pregnant 
mammals ``for whom 90% or more of the expected gestation period has 
already passed.'' The commenter suggested that the Service require a 
permit to include a condition that pre-transport health checks be 
conducted, including testing for hormonal indicators of pregnancy, to 
ensure pregnant females will not be captured or imported. The commenter 
believed the proposed pregnancy certification conflicts with the family 
unit certification, which requires that family units are kept intact, 
and that, under the pregnancy certification, pregnant females must be 
left behind.
    Response: We disagree with the commenter's statement that the 
annual certification is a violation of CITES transport guidelines. The 
section 4(d) rule states that, for an importation to qualify for an 
enhancement finding, regulating authorities of the exporting country 
must be able to ensure that no live African elephants to be imported 
are pregnant. In accordance with CITES, and under 50 CFR part 23, each 
import, export, or re-export of live CITES animals, including all 
African elephants, must comply with the IATA LAR or, in the case of 
non-air transport of animal species that may require transport 
conditions in addition to or different from the LAR, the CITES 
Guidelines for the non-air transport of wild animals and plants. 
Therefore, the importation of pregnant African elephants is currently a 
violation, and additional certification will not be necessary.
    (50) Comment: A commenter stated that the ``valuable resource'' 
certification is not meaningful to the Service's enhancement finding 
and recommended replacing it with language that actually captures the 
purpose and spirit of the ESA.
    Response: We conclude that the term ``valuable resource'' is 
appropriate and consistent with the conservation purposes of both the 
ESA and CITES and that further clarification is not necessary. We have 
carefully considered the annual certification criteria, including the 
``valuable resource'' criterion. Different countries and regulating 
agencies may value species in different ways. For example, the ESA 
(Section 2(a)) recognizes that fish, wildlife, and plant species are of 
esthetic, ecological, educational, historical, recreational, and 
scientific value to the Nation and its people. Other nations' laws may 
recognize the economic value or other value of a species as an 
incentive to pursue their conservation. The essential purpose of the 
criterion is to ensure the regulating authority in fact recognizes the 
African elephant as valuable, has an incentive to contribute to their 
conservation, and further that they have the legal and practical 
capacity to manage African elephant populations for their conservation. 
The standards we published in the proposed rule provide us with the 
data to make a conservation-based decision while not being overly 
burdensome, particularly for range countries. We recognize that the 
information we have requested may come in different forms from 
different range countries. In this rule, we are clarifying the 
enhancement criteria and will review all information submitted by the 
range country. Should any additional clarification be required to 
complete the review of an application, we may request additional 
information from the range country.
    (51) Comment: A commenter stated that while paragraph 
(e)(10)(ii)(F) of the proposed rule calls for keeping family units 
intact, the ``maximum extent practicable'' caveat provides a major 
loophole that will be exploited to exclude elephants who are difficult 
to handle or to separate young elephants from older family members 
during capture. The commenter recommended that the Service impose an 
additional requirement that range countries must

[[Page 22547]]

certify that any live elephant sought to be imported has not been 
orphaned as a result of legal trophy hunting.
    Response: The inclusion of ``maximum extent practicable'' provides 
us with flexibility to ensure that activities that provide enhancement 
for the survival of the species are not unreasonably prohibited, while 
ensuring 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. We conclude that the additional 
certification recommended by the commenter is unnecessary.
    (52) Comment: A commenter stated that the proposed rule exceeds the 
authority of the Service under the ESA. The commenter stated that the 
proposed regulations at 50 CFR 17.40(e)(10) would impose animal-welfare 
requirements that are not related to the ESA and would create 
burdensome and duplicative regulatory requirements that could result in 
conflicts with the provisions of the AWA. The commenter stated that the 
ESA does not regulate possession of endangered species, nor the welfare 
of those possessed, and regulates only movement of those species. The 
commenter stated that all matters that fall under the AWA are the 
responsibly of the Secretary of Agriculture, who is authorized to 
promulgate standards and other requirements governing the humane 
handling, care, treatment, and transportation of certain animals by 
zoos and other exhibitors. Lastly, the commenter stated there is no 
statutory authority for the Service to seek to permanently control the 
movement of elephants or other species that have been legally imported.
    Response: The final rule's amendment of 50 CFR 17.40(e)(2) and 
addition of new 50 CFR 17.40(e)(10) removes the current permitting 
exception for otherwise prohibited activities with live elephants, 
including import into or export from the United States; sale or offer 
for sale in interstate or foreign commerce; and delivery, receipt, 
carriage, transport, or shipment in interstate or foreign commerce in 
the course of a commercial activity. This final rule also establishes 
the standards used to evaluate ``enhancement'' under the ESA for the 
import of wild-sourced live African elephants, while utilizing the 
criteria in Sec.  17.32(a) for enhancement findings for other imports 
and exports of live elephants. Under 50 CFR 17.40(e)(10), ``suitably 
equipped to house and care for'' findings are also required for permits 
to authorize activities with live elephants. Those findings for live 
specimens are made in accordance with the criteria and requirements in 
our CITES implementing regulations at 50 CFR 23.65, which are currently 
applied during import of a live African elephant and other Appendix-I 
species, and those findings do not conflict with activities covered 
under the AWA. USDA does not make the determination regarding whether a 
facility is suitably equipped to house and care for any specimen, nor 
does the responsibility of making that determination fall under the 
AWA. We found that this incremental increase in requirements for 
activities with live African elephants under the section 4(d) rule is 
well-tailored to the conservation needs of the species in light of 
current CITES guidance and recommendations and consistent with our 
authority under the ESA.
    (53) Comment: A commenter stated the rule is inconsistent with 
CITES and Resolution Conf. 5.10, which the commenter stated clarifies 
that CITES prohibits the importation of Appendix-I species from the 
wild unless the importer demonstrates that (1) the importer has been 
unable to obtain suitable captive-bred specimens of the same species; 
(2) the importer could not use another species, not listed in Appendix 
I, for the proposed purpose; and (3) ``the proposed purpose could not 
be achieved through alternative means.'' The commenter stated the 
current regulations do not require an applicant to demonstrate that it 
has exhausted alternatives before importing an African elephant.
    Response: We disagree with the assertions made by the commenter. 
All CITES requirements remain in effect and are not affected by this 
rule. Our CITES implementing regulations are found in 50 CFR part 23. A 
finding of ``not for primarily commercial purposes'' will continue to 
be required for Appendix-I imports in accordance with 50 CFR 23.62. In 
addition, this rule provides clear requirements for consideration of 
relevant alternatives prior to the import of wild-sourced African 
elephants.
    (54) Comment: A commenter stated the proposed regulations allow 
unwarranted deference to claims that the exhibition of animals promotes 
conservation through education. The commenter recommended that the 
Service require zoos to submit evidence that the exhibits result in 
measurable gain in the understanding of the animal and the threats it 
faces and contribute to actions aimed at conserving the species.
    Response: Under 50 CFR 17.32(a), we require a robust review of ESA 
import permit applications for the purposes of zoological exhibition 
and educational purposes, including an analysis of educational 
materials and programming to determine if the proposed import meets the 
issuance criteria under 50 CFR 17.32(a)(2).
    (55) Comment: Several commenters suggested the regulatory revisions 
in the proposed rule are not sufficient in reducing the harm that 
African elephants suffer as a result of their continued importation and 
exportation throughout the global market. They opined that legal 
hunting is not a sufficient way to increase the survival of the 
species. Because of the practices of wildlife traffickers and forged 
import documents, the commenters did not believe it is feasible for the 
Service to ensure that elephants are legally sourced. Due to these 
factors, they requested a complete ban on sport-hunted trophies and the 
importation of live African elephants.
    Response: See response to Comment 13.
    (56) Comment: Several commenters expressed concern that the 
standards in the proposed rule regarding the annual certification of 
range countries will be overly burdensome and impossible to achieve and 
are vague and unreasonable. They are also concerned that the Service 
does not have the capability to collect, compile, and file the 
information, leading to less conservation funding for the range 
countries.
    Response: See responses to Comments 35 and 45.
    (57) Comment: Several commenters expressed concern over the 
negative potential impacts of the proposed rule on hunting revenue and 
therefore on elephant conservation. Regulatory barriers would lead to a 
prohibition on trophy hunting or otherwise make it impossible for range 
countries to comply, disincentivizing elephant hunting and ultimately 
generating less revenue from hunting. Hunting revenue is crucial to the 
operating budgets of wildlife authorities in range countries. The 
proportion of illegally killed elephants is higher in parts of Africa 
where hunting is not a part of the conservation regime, which is linked 
to the money generated by hunting that is put back into anti-poaching 
efforts. Regulatory barriers to hunting will therefore reduce their 
benefits to conservation, such as habitat protection, anti-poaching, 
and community support.
    Response: As previously noted, well-managed trophy hunting can 
benefit conservation by generating funds to be used for conservation, 
including for habitat protection, population monitoring, wildlife 
management

[[Page 22548]]

programs, and law enforcement efforts. We are also aware that not all 
trophy hunting is part of a well-managed, well-run program, and we 
evaluate import of sport-hunted trophies carefully to ensure that all 
legal requirements under 50 CFR 17.32(a)(2) are met before allowing 
import. One purpose of this rule is to clarify the criteria used when 
making these evaluations and to streamline the gathering of necessary 
information to improve review efficiency.
    (58) Comment: A commenter stated that requiring hunting revenues 
add to, and not simply substitute for, other existing funding for 
conservation is confusing and contradictory, considering that some 
areas are funded exclusively by hunting revenue.
    Response: As previously noted, well-managed trophy hunting can 
benefit conservation by generating funds to be used for conservation, 
including for habitat protection, population monitoring, wildlife 
management programs, and law enforcement efforts. The example provided, 
of conservation of land that is utilized for hunting that can be viably 
protected only via hunting, is an example of hunting revenues adding to 
and not simply substituting for other existing funding for 
conservation.
    (59) Comment: Several commenters expressed concern about the way 
funds are to be measured and monitored under the proposed rule. One 
commenter stated that the current requirement to provide information on 
how funds derived from hunting license or trophy fees will be used is 
imprecise and infringes on individual privacy. Another commenter noted 
that contributions to conservation are not typically species-specific 
and asked how ``African elephant conservation activities,'' to which 
funds derived from hunting are to be applied, are defined in the rule. 
The commenters stated that license fees in Africa are not well-managed 
and suggest that we instead consider that the following information: 
(1) If the community's wildlife is being sold for a fair market price; 
(2) if this money is reaching the community; and (3) when this money 
reaches the community, if it is governed transparently, democratically, 
and effectively. They suggested that systems that monitor the 
performance of the private sector in a standardized way would benefit 
communities.
    Response: This rule clarifies the enhancement criteria, including 
reporting on the revenues generated from the activities, and supports 
the evaluation of whether the proposed activity will contribute 
positively toward the recovery of the species in the wild. The import 
of each specimen must meet this standard. Accordingly, before approving 
the import, we use the enhancement-criteria information, including the 
information on funds, to ensure that standards are met. We acknowledge 
that wildlife management systems vary among African elephant range 
countries and, as a result, the way in which funds may be used to 
support elephant conservation may differ. We are not advocating for a 
specific system. This rule instead clarifies that we consider this 
information when making a determination related to enhancement.
    (60) Comment: Several commenters emphasized the importance of 
hunting revenues going back to community members to decide how to use. 
One commenter provided an example of a system at the community level to 
evaluate the ``fair price for wildlife'' that relied on voluntary 
access to community income statements and annual quotas. They stated 
that the long-term political and economic sustainability of African 
wildlife directly relates to community-based natural resources 
management governance principles and ensuring that high-performing 
communities get access to better prices or that a smoother importation 
process might help incentivize this process. They stated that the data 
requirements listed in the proposed rule reflect the needs of the 
private sector, but not the community. They suggested measuring revenue 
using a system that includes multiple elements: financial, total 
economic value, capital investment, ecological health and productivity, 
utilization and sustainability, resource protection, community 
development, problem-animal reporting and management, and impact 
monitoring. Other commenters suggested that funds be primarily used for 
elephant conservation on private land and within community 
conservancies, as is the case in Tanzania, and that the Service should 
clarify that revenue to communities and general treasuries of 
governments can constitute enhancement.
    Response: Please see the response to the previous comment (Comment 
59).
    (61) Comment: A commenter stated that combining transparency with 
an educated marketplace would help American hunters spend their money 
where hunting revenues genuinely benefit and empower communities. The 
commenter suggested that the following data be collected: how much is 
paid for the quota relative to its size/value; how much is paid to 
individuals/shareholders in the community; whether all individuals 
participate in revenue allocation processes; how individuals allocate 
money back to public-good functions (i.e., what do they pay in taxes 
and how are these taxes used); and how well these finances are 
accounted for and managed.
    Response: If available, we will consider this information when 
conducting an enhancement evaluation. See also response to Comment 59.
    (62) Comment: A commenter suggested that the Service require range 
countries to provide a detailed accounting of how all derived funds are 
used along with an explanation of how these funds produce a net 
positive impact on the species' conservation. The commenter suggested 
that the Service require transparent reporting of funds and evidence 
that those funds make biologically significant advances to elephant 
conservation and stated that it is important for funds to be put toward 
infrastructure and educational programs that promote human-elephant 
coexistence.
    Response: If available, we will consider this information when 
conducting an enhancement evaluation. See also response to Comment 59.

Changes From the Proposed Rule to the Final Rule

    All changes from the proposed rule (87 FR 68975, November 17, 2022) 
to this final rule were discussed above in our responses to comments 
received. We have considered substantive comments and data provided. In 
summary, we have made a few important changes and clarifications in the 
final rule:
     We finalized the CITES National Legislation Project 
Category One requirement to take effect after CITES CoP20 (anticipated 
to be held in 2025). We made this change to give range countries 
additional time to comply with this requirement and to ensure the 
requirement is supportive of countries making efforts to comply.
     We have added language to proposed paragraph (e)(11) to 
clarify that the CITES National Legislation Project Category One 
requirement will allow for limited exceptions for import of African 
elephant parts and products other than ivory for law enforcement 
purposes and genuine scientific purposes. These narrow exceptions 
parallel and will follow the same requirements as the exceptions for 
law enforcement purposes and for genuine scientific purposes currently 
established for the import of African elephant ivory (50 CFR 
17.40(e)(7) and (e)(8)).
     We have revised the language in proposed paragraph 
(e)(10)(iv) to clarify that each special permit to transfer an

[[Page 22549]]

elephant must include a condition that the elephant and its offspring 
will not be sold or otherwise transferred to another person or location 
without a special purpose permit. Adding the requirement that the 
permittee be authorized by permit to obtain a new permit when the 
animal is transferred to another location (e.g., to a facility located 
on different premises, or pursuant to a temporary loan or lease) adds 
clarity to the permit's condition.
     We have revised the language in new paragraph (e)(6)(ii) 
to clarify that any new requirements for imports of sport-hunted 
trophies will be applied prospectively and not impact sport-hunted 
trophy applications where the hunt occurred before the effective date 
of this rule. We have amended the final rule accordingly, so the new 
regulations at 50 CFR 17.40(e)(6)(ii) pertaining to import of sport-
hunted trophies will apply where the hunt date is on, or after, the 
effective date of this rule.
     We have revised the enhancement criterion that requires 
African elephant populations in a range country to be stable or 
increasing for import of live African elephants and sport-hunted 
trophies. We have replaced the term ``stable or increasing'' with 
``biologically sustainable.'' The term ``biologically sustainable'' 
gives us flexibility when making our enhancement determinations and 
allows us to consider circumstances where specific offtake is 
biologically sustainable, even if the overall population in the range 
country is not currently assessed as stable or increasing. This change 
has been reflected in paragraphs (e)(6)(ii)(A) and (e)(10)(ii)(A) of 
this final rule.
     We have adjusted the enhancement criterion that outlines 
how funds derived from live elephant and sport-hunted trophy imports 
should be applied toward African elephant conservation. While achieving 
meaningful enhancement will often require that the top use of funds 
derived from activities with elephants be directed to elephant 
conservation, we are providing more flexibility for applicants and 
range countries to demonstrate the significance of the amount of funds 
put toward African elephant conservation when determining whether the 
activities enhance the survival of the species in the wild. We have 
replaced the word ``primarily'' with ``significantly'' as that term 
better represents the requirement that funding be provided in an amount 
that will lead to meaningfully enhancing the survival of African 
elephants in the wild. We have amended proposed paragraphs 
(e)(6)(ii)(G) and (e)(10)(ii)(H) to reflect this change.
     We have removed the enhancement criterion that requires 
100 percent of African elephant meat from a hunt to be donated to local 
communities. We recognize there are situations where there are no 
inhabitants near a hunt site, or other circumstances that would make 
the requirement infeasible. We also recognize that this form of support 
to local communities, if applicable, may also be addressed as a method 
used to prevent or mitigate human-elephant conflict under paragraph 
(e)(6)(ii)(G)(7). Accordingly, we have removed proposed paragraph 
(e)(6)(ii)(G)(8) from this final rule.
     We have revised the language in new paragraphs (e)(6)(ii) 
and (e)(10)(ii) to clarify that a range country must provide the 
Service with a properly documented and verifiable certification dated 
no earlier than 1 year prior to the date the elephant is taken or 
removed from the wild, as opposed to when the permit is processed. We 
have made this clarification to better ensure the information provided 
by a range country is relevant to the time-period that the activity 
takes place. This will help ensure that we are using relevant data to 
determine if enhancement has been met for the species in the wild.

Regulatory Changes

    The rule portion of this document sets forth the new regulatory 
provisions that have been added to 50 CFR 17.40(e). For reasons 
explained below, the rule text also includes some previous regulatory 
text that we did not change. Public comments were accepted only on the 
proposed new regulatory text in the proposed rule 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 regulatory provisions in paragraph (e).
    In paragraph (e)(1), which sets forth definitions used in the 
regulations in paragraph (e), we added a definition for ``range 
country.'' We also reformatted the paragraph so that it follows current 
style requirements for the Code of Federal Regulations. Thus, we 
divided the current single paragraph into an indented list, and we have 
set forth the new term and definition in alphabetic order in a list of 
the current terms and definitions. However, we did not make changes to 
the current terms and definitions in that paragraph.
    In paragraph (e)(2), we removed both references, which appear in 
the paragraph heading and the first sentence, to live African elephants 
because we included regulatory provisions regarding live African 
elephants in a new paragraph (e)(10) as described below.
    The primary new regulatory provisions in this final rule, as 
described earlier in this document, are as follows: In a new paragraph 
(e)(6)(ii), we added regulations pertaining to making enhancement 
determinations that are required by the previous section 4(d) rule for 
the importation of African elephant sport-hunted trophies. In a new 
paragraph (e)(10), we added regulatory provisions regarding activities 
with live African elephants. Finally, we incorporated the CITES 
National Legislation Project designations into the requirements for 
certain imports in a new paragraph (e)(11) and, consequently, we added 
cross-references to paragraph (e)(11) in paragraphs (e)(2), 
(e)(6)(i)(D), and (e)(10)(i).

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 environmental assessment and economic 
analysis (see ADDRESSES).
    Executive Order (E.O.) 14094 reaffirms the principles of E.O. 12866 
and E.O. 13563 and states that regulatory analysis should facilitate 
agency efforts to develop regulations that serve the public interest, 
advance statutory objectives, and are consistent with E.O. 12866, E.O. 
13563, and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. 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 final rule in a manner consistent with 
these requirements.
    The Service has finalized an environmental assessment, as part of 
our review under the National Environmental Policy Act (NEPA), which is 
available for the public (see the section below in the preamble 
pertaining to NEPA). The final rule revises the current section 4(d) 
rule that

[[Page 22550]]

regulates trade of African elephants (Loxodonta africana). This final 
rule revises the regulations at 50 CFR 17.40(e) more strictly to 
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. This final 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 final rule on small entities, we focus on entities (zoos 
and traveling 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 environmental 
assessment.

Table 1--Potential Industries Affected by the Final 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
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 final rule, entities (zoos and traveling exhibits) will 
potentially be impacted if they import/export a live African elephant 
or transfer/move an African elephant after import. The environmental 
assessment and economic analysis show 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 final 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 will 
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 that each shipment represents one 
small business, the rule will affect 0.1 percent of these small 
businesses (including furniture, luggage and leather goods, gifts, and 
used merchandise stores). Due to the highly specific segments of 
consumers who want these types of products, we expect a small number of 
small businesses to be impacted under the final rule.
    Under the final rule, U.S. entities that provide guide services for 
hunting African elephants will 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 final 
rule.
    In addition to determining whether a substantial number of small 
entities are likely to be affected by this final rule, we must also 
determine whether the final rule is anticipated to have a significant 
economic effect on those small entities. As noted in the 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 
final rule will not have a significant economic effect on zoos and 
traveling exhibits. For all industries, it is possible that some 
importers will substitute a Category One designated country, and the 
impacts of the final rule will be reduced.
    Therefore, we certify that this final rule will not have a 
significant economic effect on a substantial number of small entities 
as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
A regulatory flexibility analysis is not required. Accordingly, a small 
entity compliance guide is not required.
    Congressional Review Act: This final rule is not a major rule under 
5 U.S.C. 804(2), the Congressional Review Act. This rule:

[[Page 22551]]

    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 final rule will not significantly or uniquely affect small 
governments. A small government agency plan is not required. The final 
rule imposes no unfunded mandates. Therefore, this final rule will have 
no effect on small governments' responsibilities.
    b. This final rule will 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 final rule does not have 
significant takings implications. While certain activities that were 
previously unregulated will now be regulated, possession will remain 
unregulated, except with regard to illegally taken or illegally traded 
specimens. A takings implication assessment is not required.
    Federalism: The 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 final 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: This final 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:
    (1) Permit Application (Form 3-200-37h), ``Interstate Commerce, 
Transfer, Export, or Foreign Commerce of Live African Elephants under 
the U.S. Endangered Species Act (ESA)'' 50 CFR 17.40--Form 3-200-37h 
will cover activities involving the interstate commerce, transfer, 
export, or foreign commerce of live 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 will 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 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 (interstate commerce, transfer, 
export, or foreign commerce).
     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-bred;
--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 that the receiving facility meets 
the CITES ``suitably equipped to house and care for'' requirements.
     The transportation/shipment condition of the live animals.
    Modifications to Form 3-200-37h: The organization of the 
application was updated to clarify the information required from the 
applicant. To ensure that applicants are asked to respond only to 
questions which pertain to the specific activity they are requesting, 
the application was divided into multiple ``Parts''. This 
reorganization will clarify which questions are required and reduce the 
overall burden to the applicant. Similarly, guidance text was altered 
in an attempt to clarify the activities covered under the application 
and the requirements for submission. Several questions were also 
combined or removed in order to reduce redundancy and to decrease the 
overall burden on the applicant. We believe these edits will make the 
form clearer and greatly reduce the burden for all applicants that will 
be filling out the form.
    (2) Range Country Certification Requirements--As described above, 
the final 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 will 
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.

[[Page 22552]]

    (3) Recordkeeping Requirements--Completion of the new application 
form requires the retention of records regarding details on the 
identification of the elephants, as well as regarding their 
acquisition, original source, and subsequent transfers, as well as 
records documenting staff technical expertise and facility information 
for the species.
    (4) Permit Fee--The new 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 Form 3-200-37h, ``Interstate Commerce, Transfer, 
Export, or Foreign Commerce of Live 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.
    Title of Collection: Federal Fish and Wildlife Permit Applications 
and Reports--Requirements for African Elephants.
    OMB Control Number: 1018-0186.
    Form Numbers: FWS Form 3-200-37h.
    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); 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      Average      Average     Estimated
                                                  number of    number of    number of    completion     annual
                  Requirement                       annual     responses      annual      time per      burden
                                                 respondents      each      responses     response     hours *
----------------------------------------------------------------------------------------------------------------
Application--Interstate Commerce, Transfer, Export, or Foreign Commerce of Live 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, Transfer, Export, or Foreign Commerce of Live 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, Transfer, Export, or Foreign Commerce of Live 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, Transfer, Export, or Foreign Commerce of Live 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.


[[Page 22553]]

    On November 17, 2022, we published in the Federal Register (87 FR 
68975) a proposed rule (RIN 1018-BG66), which announced our intention 
to request OMB approval of the information collections identified in 
the rule. In that proposed rule, we solicited comments for 60 days on 
the information collections in this submission, ending on January 17, 
2023. Summaries of comments addressing the information collections 
contained in this rule, as well as the agency response to those 
comments, can be found in the ``Proposed Rule, Public Hearing, and 
Public Comments Received'' section of this rule, as well as in the 
information collection request submitted to OMB on the RegInfo.gov 
website (https://www.reginfo.gov/public/).
    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) How the agency might 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.
    Send your written comments and suggestions on this information 
collection by the date indicated in DATES to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting 
``Currently under 30-day 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, MS: PRB/PERMA (JAO), 5275 Leesburg Pike, Falls 
Church, VA 22041-3803 (mail); or by email to [email protected]. Please 
reference OMB Control Number 1018-0186 in the subject line of your 
comments.
    National Environmental Policy Act (NEPA): This final rule was 
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). This rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment. A detailed statement under NEPA is not 
required because we conducted an environmental assessment and reached a 
finding of no significant impact. This finding and the accompanying 
environmental assessment are available online at 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 final rule under the 
Department's consultation policy and under the criteria in Executive 
Order 13175 and have determined that it has no substantial direct 
effects on federally recognized Indian Tribes and that consultation 
under the Department's Tribal consultation policy is not required. 
Individual Tribal members must meet the same regulatory requirements as 
other individuals who trade in African elephants, including African 
elephant parts and products.
    Energy Supply, Distribution, or Use: Executive Order 13211 pertains 
to regulations that significantly affect energy supply, distribution, 
or use. This final rule will revise the current regulations in 50 CFR 
part 17 regarding trade in African elephants and African elephant parts 
and products. This final rule will not significantly affect energy 
supplies, distribution, and use. Therefore, this action is not a 
significant energy action, and no statement of energy effects is 
required.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    For the reasons given in the preamble, we 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. Amend Sec.  17.40(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

[[Page 22554]]

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) For African elephant sport-hunted trophies taken on or after 
May 1, 2024, to make an enhancement determination 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 
elephant is taken that:
    (A) African elephant populations in the range country are 
biologically sustainable, 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 
significantly toward 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 country 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; 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.
* * * * *
    (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 elephant is removed 
from the wild that:
    (A) African elephant populations in the range country are 
biologically sustainable, 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 significantly toward 
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 country 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 or location 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. On 
or

[[Page 22555]]

after January 1, 2026, live African elephants, sport-hunted trophies, 
and parts or products other than ivory and sport-hunted trophies may 
not be imported into the United States under the exceptions for 
importation provided in Sec.  17.32 or paragraphs (e)(2), (e)(6), or 
(e)(10) of this section except when:
    (i) 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 and http://www.cites.org); or
    (ii) When importation under paragraph (e)(2) of this section is for 
law enforcement purposes and meets the requirements as set forth at 
paragraph (e)(7) of this section for the import of ivory or is for 
genuine scientific purposes and meets the requirements as set forth at 
paragraph (e)(8) of this section for the import of ivory.

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2024-06417 Filed 3-29-24; 8:45 am]
BILLING CODE 4333-15-P