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Rule2024-06417

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

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Published

April 1, 2024

Effective

May 1, 2024

Issuing agencies

Interior DepartmentFish and Wildlife Service

Abstract

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.

Full Text

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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-06417]

[[Page 22521]]

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

[[Page 22522]]

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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
<a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. 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 <a href="/cdn-cgi/l/email-protection#1950777f76465a767575597f6e6a377e766f"><span class="__cf_email__" data-cfemail="054c6b636a5a466a6969456372762b626a73">[email&#160;protected]</span></a> (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 <a href="https://www.cites.org">https://www.cites.org</a>) 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

[[Page 22524]]

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 <a href="http://www.cites.org">www.cites.org</a>; <a href="https://cites.org/eng/app/appendices.php">https://cites.org/eng/app/appendices.php</a>; 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:
<bullet> sport-hunted trophies for noncommercial purposes;
<bullet> 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;
<bullet> hides;
<bullet> hair;
<bullet> trade in leather goods for commercial or noncommercial
purposes for Botswana, Namibia, and South Africa and for noncommercial
purposes for Zimbabwe;
<bullet> certain ivory carvings from Namibia and Zimbabwe for
noncommercial purposes; and
<bullet> 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 <a href="https://cites.org/eng/legislation/parties">https://cites.org/eng/legislation/parties</a>).
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:
<bullet> 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;
<bullet> establish requirements for the import of live African
elephants under a new proposed 50 CFR 17.40(e)(10)(i);
<bullet> 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;
<bullet> 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;
<bullet> 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
<bullet> 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
(<a href="https://trade.cites.org/">https://trade.cites.org/</a>). 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 (<a href="https://trade.cites.org/">https://trade.cites.org/</a>) 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 <a href="https://cites.org/eng/imp/appropriate_and_acceptable_destinations">https://cites.org/eng/imp/appropriate_and_acceptable_destinations</a>. 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:
<bullet> Establishing and using science-based sustainable quotas,
including use of a sex- and age-based harvest system;
<bullet> 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.);
<bullet> Implementing and enforcing, and compliance with, wildlife
laws and regulations;
<bullet> Implementing management plans and use of adaptive
management;
<bullet> Implementing an effective anti-poaching program;
<bullet> Implementing measures to reduce human-wildlife conflict;
<bullet> Monitoring populations of the hunted species and their
food source; and
<bullet> 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; <a href="https://www.cites.org">https://www.cites.org</a>). 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

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