Endangered and Threatened Wildlife and Plants; Revision of the Section 4(d) Rule for the African Elephant (Loxodonta africana), 45154-45180 [2015-18487]
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subcutaneous needle administration of a
vaccine.
(3) Sequela means a condition or
event which was actually caused by a
condition listed in the Vaccine Injury
Table.
(4) Significantly decreased level of
consciousness is indicated by the
presence of one or more of the following
clinical signs:
(i) Decreased or absent response to
environment (responds, if at all, only to
loud voice or painful stimuli);
(ii) Decreased or absent eye contact
(does not fix gaze upon family members
or other individuals); or
(iii) Inconsistent or absent responses
to external stimuli (does not recognize
familiar people or things).
(5) Seizure includes myoclonic,
generalized tonic-clonic (grand mal),
and simple and complex partial
seizures, but not absence (petit mal), or
pseudo seizures. Jerking movements or
staring episodes alone are not
necessarily an indication of seizure
activity.
(e) Coverage provisions. (1) Except as
provided in paragraph (e)(2), (3), (4), (5),
(6), (7), or (8) of this section, this section
applies to petitions for compensation
under the Program filed with the United
States Court of Federal Claims on or
after [EFFECTIVE DATE OF THE FINAL
REGULATION.]
(2) Hepatitis B, Hib, and varicella
vaccines (Items VIII, IX, and X of the
Table) are included in the Table as of
August 6, 1997.
(3) Rotavirus vaccines (Item XI of the
Table) are included in the Table as of
October 22, 1998.
(4) Pneumococcal conjugate vaccines
(Item XII of the Table) are included in
the Table as of December 18, 1999.
(5) Hepatitis A vaccines (Item XIII of
the Table) are included on the Table as
of December 1, 2004.
(6) Trivalent influenza vaccines
(Included in item XIV of the Table) are
included on the Table as of July 1, 2005.
All other seasonal influenza vaccines
(Item XIV of the Table) are included on
the Table as of November 12, 2013.
(7) Meningococcal vaccines and
human papillomavirus vaccines (Items
XV and XVI of the Table) are included
on the Table as of February 1, 2007.
(8) Other new vaccines (Item XVII of
the Table) will be included in the Table
as of the effective date of a tax enacted
to provide funds for compensation paid
with respect to such vaccines. An
amendment to this section will be
published in the Federal Register to
announce the effective date of such a
tax.
[FR Doc. 2015–17503 Filed 7–28–15; 8:45 am]
BILLING CODE 4160–15–P
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–HQ–IA–2013–0091;
96300–1671–0000–R4]
RIN 1018–AX84
Endangered and Threatened Wildlife
and Plants; Revision of the Section
4(d) Rule for the African Elephant
(Loxodonta africana)
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), are proposing
to revise the rule for the African
elephant promulgated under section
4(d) of the Endangered Species Act of
1973, as amended (ESA), to increase
protection for African elephants in
response to the alarming rise in
poaching of the species to fuel the
growing illegal trade in ivory. The
African elephant was listed as
threatened under the ESA effective June
11, 1978, and at the same time a rule
issued under section 4(d) of the ESA (a
‘‘4(d) rule’’) was promulgated to regulate
import and use of specimens of the
species in the United States. This
proposed rule would update the current
4(d) rule with measures that are
appropriate for the current conservation
needs of the species. We are proposing
measures that are necessary and
advisable to provide for the
conservation of the African elephant as
well as appropriate prohibitions from
section 9(a)(1) of the ESA. Among other
things, we propose to incorporate into
the 4(d) rule certain restrictions on the
import and export of African elephant
ivory contained in the African Elephant
Conservation Act (AfECA) as measures
necessary and advisable for the
conservation of the African elephant.
We are not, however, revising or
reconsidering actions taken under the
AfECA, including our determinations in
1988 and 1989 to impose moratoria on
the import of ivory other than sporthunted trophies from both range and
intermediary countries. We are
proposing to take these actions under
section 4(d) of the ESA to increase
protection and benefit the conservation
of African elephants, without
unnecessarily restricting activities that
have no conservation effect or are
strictly regulated under other law.
DATES: In preparing the final decision
on this proposed rule, we will consider
SUMMARY:
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comments received or postmarked on or
before September 28, 2015.
ADDRESSES: You may submit comments
by one of the following methods:
• Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–HQ–IA–2013–0091, which is
the docket number for this rulemaking.
You may submit a comment by clicking
on ‘‘Comment Now!’’
• By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–HQ–IA–2013–
0091; Division of Policy, Performance,
and Management Programs; U.S. Fish
and Wildlife Service; 5275 Leesburg
Pike, MS: BPHC; Falls Church, VA
22041.
We will not accept email or faxes. We
will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see the
Public Comments section at the end of
SUPPLEMENTARY INFORMATION for further
information about submitting
comments).
FOR FURTHER INFORMATION CONTACT:
Craig Hoover, Chief, Wildlife Trade and
Conservation Branch, Division of
Management Authority; U.S. Fish and
Wildlife Service; 5275 Leesburg Pike,
MS: IA; Falls Church, VA 22041
(telephone, (703) 358–2093).
SUPPLEMENTARY INFORMATION:
Applicable Laws
In the United States, the African
elephant is primarily protected and
managed under the Endangered Species
Act (ESA) (16 U.S.C. 1531 et seq.); 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; and the African
Elephant Conservation Act (AfECA) (16
U.S.C. 4201 et seq.).
Endangered Species Act
Under the ESA, species may be listed
either as ‘‘threatened’’ or as
‘‘endangered.’’ When a species is listed
as endangered under the ESA, certain
actions are prohibited under section 9
(16 U.S.C. 1538), as specified at 50 CFR
17.21. These include prohibitions on
take within the United States, within
the territorial seas of the United States,
or upon the high seas; import; export;
sale and offer for sale in interstate or
foreign commerce; and delivery, receipt,
carrying, transport, or shipment in
interstate or foreign commerce in the
course of a commercial activity.
The ESA does not specify particular
prohibitions and exceptions to those
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prohibitions for threatened species.
Instead, under section 4(d) of the ESA,
the Secretary of the Interior is given the
discretion to issue such regulations as
deemed necessary and advisable to
provide for the conservation of the
species. The Secretary also has the
discretion to prohibit by regulation with
respect to any threatened species any
act prohibited under section 9(a)(1) of
the ESA for endangered species.
Exercising this discretion under section
4(d), the Service has developed general
prohibitions (50 CFR 17.31) and
established a permit process for
specified exceptions to those
prohibitions (50 CFR 17.32) that apply
to most threatened species. Permits
issued under 50 CFR 17.32 must be for
‘‘Scientific purposes, or the
enhancement of propagation or survival,
or economic hardship, or zoological
exhibition, or educational purposes, or
incidental taking, or special purposes
consistent with the purposes of the
[ESA].’’
Under section 4(d) of the ESA, the
Service may also develop specific
prohibitions and exceptions tailored to
the particular conservation needs of a
threatened species. In such cases, the
Service issues a 4(d) rule that may
include some of the prohibitions and
authorizations set out at 50 CFR 17.31
and 17.32, but that also may be more or
less restrictive than the general
provisions at 50 CFR 17.31 and 17.32.
Convention on International Trade in
Endangered Species of Wild Fauna and
Flora
CITES entered into force in 1975, and
is currently implemented by 180
countries (called Parties), including the
United States. The aim of CITES is to
regulate international trade in listed
animal and plant species, including
their parts and products, to ensure the
trade is legal and does not threaten the
survival of species. CITES regulates both
commercial and noncommercial
international trade through a system of
permits and certificates that must be
presented when leaving and entering a
country with CITES specimens. Species
are listed in one of three appendices,
which provide different levels of
protection. In some circumstances,
different populations of a species are
listed at different levels. Appendix I
includes species that are threatened
with extinction and are or may be
affected by trade. The Convention states
that Appendix-I species must be subject
to ‘‘particularly strict regulation’’ and
trade in specimens of these species
should only be authorized ‘‘in
exceptional circumstances.’’ Appendix
II includes species that are not
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necessarily threatened with extinction
now, but may become so if international
trade is not regulated. Appendix III
includes species that a range country
has identified as being subject to
regulation within its jurisdiction and as
needing cooperation of other Parties in
the control of international trade.
Import and export of CITES species is
prohibited unless accompanied by any
required CITES documents.
Documentation requirements vary
depending on the appendix in which
the species or population is listed and
other factors. CITES documents cannot
be issued until specific biological and
legal findings have been made. CITES
does not regulate take or domestic trade
of listed species. It contributes to the
conservation of listed species by
regulating international trade and, in
order to make the necessary findings,
encouraging assessment and analysis of
the population status of species in trade
and the effects of international trade on
wild populations to ensure that trade is
legal and does not threaten the survival
of the species.
African Elephant Conservation Act
The AfECA was enacted in 1988, to
‘‘perpetuate healthy populations of
African elephants’’ by regulating the
import and export of certain African
elephant ivory to and from the United
States. Building from and supporting
existing programs under CITES, the
AfECA called on the Service to establish
moratoria on the import of raw and
worked ivory from both African
elephant range countries and
intermediary countries (those that
export ivory that does not originate in
that country) that failed to meet certain
statutory criteria. The statute also states
that it does not provide authority for the
Service to establish a moratorium that
prohibits the import of sport-hunted
trophies that meet certain standards.
In addition to authorizing
establishment of the moratoria and
prohibiting any import in violation of
the terms of any moratorium, the AfECA
prohibits: The import of raw African
elephant ivory from any country that is
not a range country; the import of raw
or worked ivory exported from a range
country in violation of that country’s
laws or applicable CITES programs; the
import of worked ivory, other than
certain personal effects, unless the
exporting country has determined that
the ivory was legally acquired; and the
export of all raw (but not worked)
African elephant ivory. While the
AfECA comprehensively addresses the
import of ivory into the United States,
it does not address other uses of ivory
or African elephant specimens other
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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.
Regulatory Background
Ghana first listed the African elephant
in CITES Appendix III on February 26,
1976. Later that year, the CITES Parties
agreed to add African elephants to
Appendix II, effective February 4, 1977.
In October 1989, all populations of
African elephants were transferred from
CITES Appendix II to Appendix I
(effective in January 1990), which ended
much of the previous 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 population of South Africa was
transferred from CITES Appendix I to
Appendix II in 2000, with an annotation
that allowed trade in hunting trophies
for noncommercial purposes, trade in
live animals for reintroduction
purposes, and trade in hides and leather
goods. (At that time, the Panel of
Experts reviewing South Africa’s
proposal concluded, among other
things, that South Africa’s elephant
population was increasing, that there
were no apparent threats to the status of
the population, and that the country’s
anti-poaching measures were
‘‘extremely effective.’’) Since then, the
CITES Parties have revised the
Appendix-II listing annotation three
times. The current annotation, in place
since 2007, covers the Appendix-II
populations of Botswana, Namibia,
South Africa, and Zimbabwe and allows
export of: Sport-hunted trophies for
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noncommercial purposes; live animals
to appropriate and acceptable
destinations; hides; hair; certain ivory
carvings from Namibia and Zimbabwe
for noncommercial purposes; and a onetime export of specific quantities of raw
ivory, once certain conditions had been
met (this export, to China and Japan,
took place in 2009). As in previous
versions of the annotation, all other
African elephant specimens from these
four populations are deemed to be
specimens of species included in
Appendix I and the trade in them is
regulated accordingly.
The African elephant was listed as
threatened under the ESA, effective June
11, 1978 (43 FR 20499, May 12, 1978).
A review of the status of the species at
that time showed that the African
elephant was declining in many parts of
its range and that habitat loss, illegal
killing of elephants for their ivory, and
inadequacy of existing regulatory
mechanisms were factors contributing to
the decline. At the same time the
African elephant was designated as a
threatened species, the Service
promulgated a 4(d) rule to regulate
import and certain interstate commerce
of the species in the United States (43
FR 20499, May 12, 1978).
The 1978 4(d) rule for the African
elephant stated that the prohibitions at
50 CFR 17.31 applied to any African
elephant, alive or dead, and to any part,
product, or offspring thereof, with
certain exceptions. Specifically, under
the 1978 rule, the prohibition at 50 CFR
17.31 against importation did not apply
to African elephant specimens that had
originated in the wild in a country that
was a Party to CITES if 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 en route to the United
States. (At that time, the only African
elephant range States that were Parties
to CITES were Botswana, Ghana, Niger,
Nigeria, Senegal, South Africa, and
Zaire [now the Democratic Republic of
the Congo].) The 1978 rule allowed for
a special purpose permit to be issued in
accordance with the provisions of 50
CFR 17.32 to authorize any activity
otherwise prohibited with regard to the
African elephant, upon submission of
proof that the specimens were already
in the United States on June 11, 1978,
or that the specimens were imported
under the exception described above.
The 4(d) rule has been amended twice
in response to changes in the status of
African elephants and the illegal trade
in elephant ivory, and to more closely
align U.S. requirements with actions
taken by the CITES Parties. On July 20,
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1982, the Service amended the 4(d) rule
for the African elephant (47 FR 31384)
to ease restrictions on domestic
activities and to more closely align its
requirements with provisions in CITES
Resolution Conf. 3.12, Trade in African
elephant ivory, adopted by the CITES
Parties at the third meeting of the
Conference of the Parties (CoP3, 1981).
The 1982 rule applied only to import
and export of ivory (and not other
elephant specimens) and eliminated the
prohibitions under the ESA against
taking, possession of unlawfully taken
specimens, and certain activities for the
purpose of engaging in interstate and
foreign commerce, including the sale
and offer for sale in interstate commerce
of African elephant specimens. At that
time, the Service concluded that the
restrictions on interstate commerce
contained in the 1978 rule were
unnecessary and that the most effective
means of utilizing limited resources to
control ivory trade was through
enforcement efforts focused on imports.
Following enactment of the AfECA (in
October 1988), the Service established,
on December 27, 1988, a moratorium on
the import into the United States of
African elephant ivory from countries
that were not parties to CITES (53 FR
52242). On February 24, 1989, the
Service established a second
moratorium on all ivory imports into the
United States from Somalia (54 FR
8008). On June 9, 1989, the Service put
in place the current moratorium, which
bans the import of ivory other than
sport-hunted trophies from both range
and intermediary countries (54 FR
24758).
The 4(d) rule was revised on August
10, 1992 (57 FR 35473), following
establishment of the 1989 moratorium
under the AfECA on the import of
African elephant ivory into the United
States, and again on June 26, 2014 (79
FR 30400, May 27, 2014), associated
with the update of U.S. CITES
implementing regulations. In the 2014
revision of the 4(d) rule, we removed
the CITES marking requirements for
African elephant sport-hunted trophies.
At the same time, these marking
requirements were updated and
incorporated into our CITES regulations
at 50 CFR 23.74. The purpose of this
change was to make clear what is
required under CITES (at 50 CFR part
23) for trade in sport-hunted trophies
and what is required under the ESA (at
50 CFR part 17).
Need for Regulatory Actions
We have reevaluated the provisions of
the 4(d) rule and considered other
administrative actions in response to
unprecedented increases in the illegal
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killing of elephants, an alarming growth
in illegal trade of elephant ivory,
recommendations adopted by the CITES
Parties in March 2013 to help curb the
illegal killing and illegal trade, issuance
of Executive Order 13648 on Combating
Wildlife Trafficking in July 2013, and
the stated priorities in the National
Strategy for Combating Wildlife
Trafficking, issued by President Obama
in February 2014.
Illegal Killing of Elephants and Illegal
Ivory Trade
The increase in poaching of elephants
and the escalation of the illegal trade in
ivory are described in documents made
available at CoP16. See, in particular,
CoP16 Doc. 53.1, Monitoring the illegal
killing of elephants (including the
Addendum); CoP16 Doc. 53.2.2,
Monitoring of illegal trade in ivory and
other elephant specimens; and
Elephants in the Dust—the African
Elephant Crisis, all available at https://
www.cites.org. Status of African
elephant populations and levels of
illegal killing and the illegal trade in
ivory: A report to the African Elephant
Summit, December 2013 (also available
at https://www.cites.org) provides an
update to information presented at
CoP16. A further update on the status of
African elephants was prepared for the
65th meeting of the CITES Standing
Committee (SC65), in July 2014, and
presented in Annex 1 to document SC65
Doc. 42.1, Elephant conservation, illegal
killing and ivory trade.
CoP16 Doc. 53.1 and its Addendum
(prepared by the CITES Secretariat), the
December 2013 report for the African
Elephant Summit (prepared by the
CITES Secretariat, the International
Union for Conservation of Nature
(IUCN), and TRAFFIC, the Wildlife
Trade Monitoring Network), and Annex
1 to SC65 Doc. 42.1 (prepared by the
IUCN/Species Survival Commission
Asian and African Elephant Specialists
Groups, the CITES Secretariat, the
United Nations Environment
Programme’s World Conservation
Monitoring Centre (UNEP–WCMC), and
TRAFFIC) provide analyses of trends in
levels of illegal killing of elephants
based on data from the CITES
Monitoring the Illegal Killing of
Elephants (MIKE) program. MIKE is a
site-based monitoring system intended
to measure levels and trends in the
illegal killing of elephants and to
determine changes in these trends over
time. Data are collected by ranger
patrols and others at established MIKE
sites and reported to the CITES
Secretariat. The reports in CoP16 Doc.
53.1 and its Addendum contain
analyses of data collected between 2002
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and 2011, from more than 40 MIKE sites
across Africa. The report prepared for
the African Elephant Summit in
December 2013 contains an updated
MIKE analysis using 2012 data, and the
report in the Annex to SC65 Doc. 42.1
contains a further updated MIKE
analysis using data collected through
2013. The data set used for the most
recent analysis (in SC65 Doc. 42.1)
consists of 12,073 records of elephant
carcasses found between 2002 and the
end of 2013, at 53 MIKE sites in 29
countries across Africa.
MIKE data are used to evaluate
relative poaching levels based on the
Proportion of Illegally Killed Elephants
(PIKE), which is calculated as the
number of illegally killed elephants
found divided by the total number of
elephant carcasses encountered by
patrols or other means, aggregated by
year for each site. The data in these
reports show a steady increase in levels
of illegal killing starting in 2006, with
2011 having the highest levels of
poaching since MIKE records began in
2002. In 2012 and 2013, there appears
to be a gradual decline, with 2013 levels
close to those recorded in 2010. Despite
the decline since 2011, poaching levels
overall remain alarmingly high, with
nearly two-thirds of dead elephants
found in 2013 deemed to have been
illegally killed. These reports state that
the PIKE levels translate to 17,000
elephants killed at African MIKE sites in
2011, and 15,000 elephants killed at
African MIKE sites in 2012. These
numbers were estimated using models.
The authors of the 2014 report prepared
for SC65 note that it was not possible to
derive an estimate for 2013 using the
same method as in previous years
because some of the required covariates
for 2013 were not yet available.
However, the authors provide a
‘‘preliminary and rough calculation’’
using a different method that estimates
more than 14,000 elephants were killed
at MIKE sites in 2013. The authors stress
that this estimate must be treated with
caution, but they state that ‘‘there are
good reasons to believe that the number
of elephants illegally killed in Africa in
2013 ran, as in previous years, into the
tens of thousands, perhaps in the order
of 20 to 22 thousand.’’
A joint press release, issued by the
CITES Secretariat, IUCN, and TRAFFIC
International on December 2, 2013, at
the opening of the African Elephant
Summit in Gabarone, Botswana,
asserted that the figures for MIKE sites
amount to an estimated 25,000
elephants killed illegally across Africa
in 2011, and 22,000 killed illegally in
2012. Others have suggested that the
numbers killed continent-wide are
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likely even higher. The statistical model
used to evaluate MIKE data estimates
that the ‘‘threshold of sustainability’’ at
MIKE sites was crossed in 2010, with
poaching rates remaining above the
population growth rate of 4 to 5 percent
for healthy elephant populations every
year since.
A recent study, published in the
Proceedings of the National Academy of
Sciences (in July 2014), reaffirmed these
assertions. Wittemyer et al. (2014) used
MIKE data to analyze the impacts of
illegal killing on elephant populations
across the African continent, using two
different approaches. The results
demonstrate ‘‘an over-harvest driven
decline in African elephants likely
began in 2010.’’ The authors assumed an
average annual population increase in
the absence of illegal killing of 4.2
percent. They estimated that illegal
killing rates averaged about 6.8 percent
between 2010 and 2012, which the
authors estimate corresponds to more
than 33,000 elephants killed per year
(based on current population estimates).
They also noted that preliminary data
for 2013 suggest regional and
continental levels were slightly lower
than for 2012, but still unsustainable.
CoP16 Doc. 53.2.2 and Annex 1 to
SC65 Doc. 42.1 contain reports,
prepared by TRAFFIC, on data in the
CITES Elephant Trade Information
System (ETIS). ETIS is a system for
collecting and compiling law
enforcement data on seizures and
confiscations in order to monitor the
pattern and scale of illegal trade in
elephant specimens. TRAFFIC receives
seizure and confiscation data from
CITES Parties, manages and coordinates
the ETIS system, and produces a
comprehensive report for meetings of
the CoP and updates for meetings of the
Standing Committee.
The report in CoP16 Doc. 53.2.2
covers the period 1996 through 2011,
and the report in SC65 Doc. 42.1 covers
the period 1996 through 2012 (data for
2013 were not yet complete when the
report was prepared). The data set used
for the analysis presented in SC65 Doc.
42.1 includes 14,070 separate raw or
worked ivory seizure records from 72
countries or territories during 1996–
2012. Using 1998 as a baseline (because
it is the first full year after some
populations of African elephant were
transferred from Appendix I to
Appendix II and, at the same time, the
development of monitoring systems,
including ETIS, was mandated by the
Parties), the reports examine trends in
both the frequency of illegal ivory trade
transactions and the scale of the illegal
trade in ivory.
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Illegal trade activity (frequency of
transactions) remained at or slightly
above 1998 levels up to 2006. In 2006,
a gradual increase in activity began and
grew with each successive year, with a
‘‘major surge’’ in 2011. The authors
report that the frequency of illegal ivory
trade transactions in 2011 represented
‘‘a three-fold increase in illegal trade
activity since 1998.’’
The scale of illegal trade was assessed
by evaluating the weight of ivory traded
illegally. The authors caution that there
is more uncertainty in evaluating the
weight of ivory in illegal trade than in
evaluating the frequency of illegal
transactions, but the trend is clear. Like
the trend in frequency of transactions,
there was relative stability in the weight
of ivory in illegal trade through 2007,
followed by a sharp increase in the
following years. The authors estimate
that the quantity of illegal ivory in trade
in 2011, measured by weight, was
nearly three times 1998 levels, and,
although 2012 data show a slight
decrease compared to 2011, levels in
2012 represent a value that is about two
and a half times the 1998 levels. This
upward trend reflects a major increase
in large consignments of ivory (over 100
kg) in illegal trade, which, the authors
note, points to the increasing
involvement of international criminal
syndicates. In its 2014 report to SC65,
TRAFFIC states that the frequency of
large-scale ivory seizures has increased
greatly since 2000, and that the
‘‘upward surge in the weight of ivory
seized from 2009 through 2012 has been
primarily driven by increased seizures
in the large ivory weight class.’’
Although 2013 data were not complete
when the report was written and,
therefore, were not included in the
analysis, the authors note that the 18
seizures made in 2013 for which they
had data ‘‘collectively constitute the
greatest quantity of ivory derived from
large-scale seizure events going back to
1989.’’
Elephants in the Dust—the African
Elephant Crisis is a report
commissioned by the CITES Secretariat
through its MIKE program and prepared
by UNEP, the CITES Secretariat, IUCN,
and TRAFFIC for presentation at CoP16.
This report highlights the long-term
threats to African elephants posed by
habitat loss due to human population
growth and large-scale conversion of
land for agriculture. It also raises alarm
at the added impact of the increasing
poaching levels on elephant
populations, not only in central Africa
but also in previously secure areas of
east, west, and southern Africa. Both the
TRAFFIC report to CoP16 and Elephants
in the Dust conclude that elephants are
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facing the most serious conservation
crisis since 1989, when the African
elephant was transferred from CITES
Appendix II to Appendix I. The
poaching of African elephants to supply
international demand for ivory has
reached unprecedented levels, and
opportunistic poaching has been
replaced by coordinated slaughter
commissioned by organized networks or
syndicates.
The CITES Parties have taken steps to
address the growing illegal trade in
ivory, including, at CoP16, calling on
countries to ensure that they have
comprehensive measures in place to
regulate the domestic trade in raw and
worked ivory. At SC65, the Standing
Committee took steps to hold countries
that have been identified as being
significantly involved in illegal ivory
trade (either as source, transit, or
destination countries for illegal ivory)
accountable. Identified countries that
fail to take actions to resolve problems
by the agreed deadlines may be subject
to CITES trade sanctions.
U.S. Involvement in the Illegal Ivory
Trade
Demand for ivory is driving the
current poaching crisis. Although the
primary markets are in Asia,
particularly in China and Thailand, the
United States continues to play a role as
a destination and transit country for
illegally traded elephant ivory. Service
wildlife inspectors stationed at major
U.S. ports intercept smuggled wildlife
and ensure that wildlife importers and
exporters comply with declaration,
permit, and other requirements for
international trade in elephants and
other wildlife species. Over the years,
seizures of unlawfully imported and
exported elephant specimens at U.S.
ports have ranged from whole elephant
tusks and large ivory carvings to knife
handles, jewelry made from ivory or
hair, and tourist souvenirs including
items made from elephant feet and
bones. The Service provides seizure
data to TRAFFIC annually for inclusion
in the CITES ETIS database. Since 1990,
the annual number of seizure cases
involving elephant specimens at U.S.
ports has ranged from over 450 (in 1990)
to 60 (in 2008); in most other years the
number falls between 75 and 250 cases.
In 2012, the most recent year for which
we have complete data, there were
about 225 seizure cases involving
elephant specimens, which resulted in
seizure of over 1,500 items that
contained or consisted of elephant parts
or products. Nearly 1,000 of those items
contained or consisted of elephant
ivory. (About 300 of the items were
elephant hairs.)
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Service special agents have
investigated multiple smuggling
operations involving the trafficking of
elephant ivory for U.S. markets. Some
examples of major investigations are
provided here. In September 2012, the
owner of a Philadelphia African art
store was arrested and pleaded guilty to
smuggling African elephant ivory into
the United States. Approximately one
ton of elephant ivory was seized from
his store; it was the largest ivory seizure
in U.S. history. According to the
indictment, the art store owner paid a
co-conspirator to travel to Africa to
purchase raw elephant ivory and have it
carved to his specifications and stained
or dyed so that the carvings would
appear old. He sold the carvings at his
store in Philadelphia and elsewhere in
the United States as ‘‘antiques.’’
The arrest in Philadelphia was an
outgrowth of a multi-year investigation
that documented over 20 shipments of
newly carved elephant ivory smuggled
into the United States in air and ocean
cargo from Cameroon, Ivory Coast,
Nigeria, and Uganda. The smuggled
ivory came into the country through
New Jersey and New York, and was
distributed to collectors and retailers
across the United States, including to
Chicago, Houston, Memphis, New York
City, Philadelphia, and Trenton. A total
of 10 individuals were charged and later
convicted as part of this investigation.
Much of the ivory in this case was sent
via parcel accompanied by fraudulent
shipping and customs documents, and
disguised with clay and other
substances to look like musical
instruments and wooden statues.
Service investigators teamed with
officers from the New York Department
of Environmental Conservation to probe
illegal ivory sales by a New York City
jeweler distributor and two Manhattan
retailers. This investigation documented
a booming and unauthorized trade in
ivory. Prosecutions were pursued by the
Attorney General for the State of New
York based on violations of State laws
regulating the sale of elephant ivory.
The stores prosecuted paid $50,000 in
fines and forfeited over one ton of
elephant ivory (which was destroyed at
the Service’s ‘‘ivory crush’’ described
below). The distributor forfeited 70
pounds of elephant ivory valued at
$30,000 and paid $10,000 in restitution.
Service special agents worked with
the Thai Royal Police to secure the 2010
U.S. indictment of two businessmen
(the owner of a Los Angeles area donut
shop and a Thai trafficker) and four
arrests in Thailand in a case that
exposed transcontinental trafficking in
elephant ivory. Over the course of this
5-year undercover investigation, officers
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showed that ivory was being smuggled
from Africa into Thailand by Thai
operatives who then sold it to clients in
the United States and other countries.
The investigation began in 2006, when
Service wildlife inspectors conducting
an inspection ‘‘blitz’’ at the
international mail facility in Los
Angeles intercepted a package of
elephant ivory that had been mailed
from Thailand to a U.S. business and
labeled as toys. The U.S. defendant
pleaded guilty to Federal charges.
Operation Scratchoff was a multi-year
investigation, launched by the Service
in New York in 2006. It documented
and disrupted the illegal activities of
both international smugglers who were
bringing ivory into the country from
Africa and U.S. retailers involved in this
black market trade. Special agents
documented smuggled ivory entering
the United States from Cameroon,
Gabon, Ghana, Ivory Coast, Kenya,
Nigeria, and Uganda. Most of the ivory
smuggled by defendants in this case was
shipped from Africa via mail parcel
through John F. Kennedy International
Airport. The shipments were
accompanied by fraudulent shipping
and customs documents identifying
their contents as African wooden
handicrafts or wooden statues. The
ivory itself was painted to look like
wood; covered with clay; or hidden
inside wooden handicrafts, such as
traditional African musical instruments.
Work on this investigation resulted in
the arrest and conviction of eight
individuals in the United States on
felony smuggling and/or Lacey Act (16
U.S.C. 3371 et seq.) charges with final
sentencing in 2010 and 2011. Prison
terms for five of these defendants,
which included a 33-month sentence for
one, totaled more than 7 years.
Operation Scratchoff also led to the
arrest in January 2010 of an ivory
supplier in Uganda by Ugandan
authorities, and the identification of
additional ivory trafficking suspects.
In 2008, a Canadian citizen was
sentenced to 5 years in prison and
ordered to pay a $100,000 fine for
illegally smuggling ivory from
Cameroon into the United States for sale
here. The perpetrator operated art
import and export businesses in
Montreal, Canada and in Cameroon that
were fronts for smuggling products
made from protected wildlife species,
including raw elephant ivory. She ran a
sophisticated smuggling operation that
utilized local artists and craftsmen in
Cameroon, operatives within
international shipping companies,
contacts in the illegal ivory trade, her
business in Canada, and partners in
three countries. Two of her shipments,
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sent to Ohio, included fresh ivory from
more than 20 recently killed elephants.
In 2006, Service special agents
secured a 20-count criminal indictment
against Primitive Art Works, a Chicago
art gallery specializing in high-end
exotic artifacts from around the world,
and its two owners for smuggling
elephant ivory and products made from
other protected species into the United
States. The Service seized over 1,000
ivory carvings and tusks from the
defendants, who were asking as much as
$50,000 a piece for these items. Both
owners pleaded guilty to wildlife
violations later that year.
In 2001, during Operation Loxa,
Service officers in Los Angeles
intercepted more than 250 pounds of
smuggled African elephant ivory, the
largest ivory seizure ever on the west
coast of the United States. The two
shipments, which were smuggled from
Nigeria, were declared to customs as
handcrafted furniture. The ivory
included whole tusks and pieces hidden
inside furniture and concealed in
beaded cloth. Four individuals were
arrested and indicted for conspiracy to
smuggle elephant ivory into the United
States. Three of them were convicted.
Service special agents have also
investigated cases involving smuggling
of elephant ivory out of the United
States to other markets, particularly in
Asia. In an investigation, known as
Operation Crash, an Asian antique
dealer was convicted for his role in the
conspiracy to smuggle items made from
elephant ivory and rhinoceros horn
valued at over $1,000,000. The
investigation revealed that this
individual worked in the United States
as a buyer for four different Asian
dealers, who were purchasing numerous
ivory carvings from auction houses in
the United States. After purchasing the
ivory at auctions, the antique dealer
smuggled the ivory (through the mail) to
various locations in Hong Kong, using
false declarations to avoid export
controls.
In 2011, a Chinese national was
intercepted at John F. Kennedy
International Airport prior to boarding a
plane to Shanghai, China. Service
investigators found 18 elephant ivory
carvings concealed in his luggage. This
individual was an Asian art dealer who
purchased the carvings at various U.S.
auction houses during a week-long
buying trip. Upon arrest, he told agents
that he wrapped the ivory carvings in
tin foil to avoid x-ray detection.
At auctions in the United States,
Service law enforcement officers have
documented foreign buyers placing
absentee bids on wildlife items,
including those made from African
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elephant ivory. In some cases, the ivory
items are smuggled directly to the
foreign buyers. In many instances,
however, the foreign buyers employ
couriers with residences in the United
States to collect the elephant ivory and
smuggle it overseas on their behalf. We
are concerned that foreign ivory buyers
and couriers view the United States as
a significant source and market for
elephant ivory.
In November 2013, the Service
destroyed nearly six tons of contraband
African and Asian elephant ivory that
had been either seized at U.S. ports or
as part of law enforcement
investigations over the past 25 years for
violation of wildlife laws. We crushed
this contraband ivory, which had been
stored at the Service’s National Wildlife
Property Repository, to raise public
awareness about the current African
elephant poaching crisis and to send a
clear message that the United States will
not tolerate ivory trafficking and the toll
it is taking on wild elephant
populations. The six tons of ivory
crushed in 2013 underscores the
continuing U.S. role in the illegal
market and the need for us to take
further actions to curtail that role.
There is also a legal market for ivory
within the United States. We do not
have comprehensive information on the
U.S. domestic ivory market. Tackling
the Ivories, a 2004 report by Douglas
Williamson for TRAFFIC North
America, described the status of U.S.
trade in elephant and hippopotamus
ivory. At that time, the author noted that
‘‘as one of the world’s largest markets
for wildlife products, the [United States]
has long played a significant role in the
international ivory trade.’’ He
concluded that the ivory trade within
the United States was not closely
monitored and that its full extent was
unknown. In addition to ivory available
from retail outlets, he noted that there
was ‘‘significant trade conducted via the
internet, with little oversight.’’ The
domestic trade involved both raw and
worked ivory. Worked ivory was readily
available in the form of carvings,
jewelry, piano keys, and other items.
Raw ivory was bought by companies
and individuals to be fashioned into
specialty items including knife handles,
gun grips, and pool cues. Along with
legal trade, Williamson found evidence
of illegal trade, including internet
sellers in China that routinely shipped
ivory to the United States, via express
delivery service, and offered to falsely
label the shipments as ‘‘bone carvings.’’
In a 2006–2007 survey of selected
metropolitan areas across the United
States, Martin and Stiles (2008)
identified retail establishments trading
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in worked ivory, including ivory from
African elephants. In each area
surveyed, the surveyors visited major
flea markets, antique markets, main
shopping areas for antiques and crafts,
department stores, and luxury hotel gift
shops. The study does not identify all
establishments trading in ivory, but
gives a general idea of the number of
establishments and geographic scope. In
the 16 areas surveyed, the authors
identified a total of 652 retail outlets
offering a total of more than 23,000
ivory products for sale. Of the areas
surveyed, those with the most retail
outlets and the greatest number of ivory
products for sale were: New York City
(124 retail outlets containing a total of
11,376 ivory products); San Francisco
Bay area (40 retail outlets containing a
total of 2,777 ivory products); and
greater Los Angeles (170 retail outlets
containing a total of 2,605 ivory
products). Martin and Stiles estimated
that as much as one-third of the items
they found were imported illegally after
the 1989 AfECA import moratorium.
In March and April of 2014, one of the
authors of the 2008 study conducted a
follow-up survey (Stiles 2015) in Los
Angeles and San Francisco, California.
He found a total of more than 1,250
ivory items offered for sale by 107
vendors in these two California cities,
‘‘with 777 items and 77 vendors in Los
Angeles and well over 473 ivory items
and 30 vendors in San Francisco.’’
While there were ‘‘significantly fewer
venders’’ offering ivory for sale,
compared to the 2006–2007 survey,
Stiles noted ‘‘a much higher incidence
of what appears to be ivory of recent
manufacture in California, roughly
doubling from approximately 25% in
2006 to about half in 2014. In addition,
many of the ivory items seen for sale in
California advertised as antiques (i.e.,
more than 100 years old) appear to be
more likely from recently killed
elephants.’’
Basis for Regulatory Changes and
Necessary and Advisable
Determination
It is often impossible to distinguish
ivory legally imported into the United
States from that which has been
smuggled into the country, which
significantly undermines enforcement
efforts and provides an opportunity for
illegal ivory to be laundered through
U.S. markets. In addition, U.S. citizens
may be involved in the global ivory
market with ivory that has never been
imported into the United States. The
Service has reevaluated our domestic
controls, given the current poaching
crisis in Africa and the associated
increase in illegal trade in ivory, the
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recent CITES recommendations, and
evidence that substantial quantities of
illegal ivory are making their way into
U.S. markets. We have determined that
it is appropriate to take certain
regulatory actions, including revision of
the 4(d) rule as necessary and advisable
for the conservation of the species and
to include certain prohibitions from
section 9(a)(1) of the ESA, to more
strictly regulate U.S. trade in ivory. The
proposed revisions would regulate
import, export, and commercial use of
African elephant ivory and sport-hunted
trophies and appropriately protect live
elephants within the United States,
while including certain limited
exceptions for items and activities that
we do not believe, based on all available
evidence, are contributing to the
poaching of elephants in Africa,
including trade in live animals, parts
and products other than ivory, and
certain manufactured items containing
ivory that meet specific criteria.
These new restrictions would
facilitate enforcement efforts within the
United States and improve regulation of
both domestic and foreign trade in
elephant ivory by U.S. citizens.
Improved domestic controls will make it
more difficult to launder illegal
elephant ivory through U.S. markets,
which will contribute to a reduction in
poaching of African elephants.
This proposed action is consistent
with Executive Order 13648 on
Combating Wildlife Trafficking signed
by President Obama on July 1, 2013, to
‘‘address the significant effects of
wildlife trafficking on the national
interests of the United States.’’ The
Executive Order calls on executive
departments and agencies to take all
appropriate actions within their
authority to ‘‘enhance domestic efforts
to combat wildlife trafficking, to assist
foreign nations in building capacity to
combat wildlife trafficking, and to assist
in combating transnational organized
crime.’’ Increased control of the U.S.
market for elephant ivory is also among
the administrative actions called for in
the National Strategy for Combating
Wildlife Trafficking, issued by President
Obama on February 11, 2014. Director’s
Order No. 210, issued by the Director of
the U.S. Fish and Wildlife Service,
established policy and procedures for
the Service to follow in implementing
the National Strategy with regard to
trade in African elephant ivory and
parts and products of other ESA-listed
species.
This proposal is also in line with
international efforts. At CoP16, in
March 2013, the CITES Parties adopted
a revised resolution on trade in elephant
specimens (Resolution Conf. 10.10 (Rev.
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CoP16)), which, among other things,
urges Parties with a legal domestic ivory
market to ensure that they have in place
‘‘comprehensive internal legislative,
regulatory, enforcement and other
measures to regulate the domestic trade
in raw and worked ivory.’’ Wittemyer et
al. (2014) concluded that it is obvious
that stemming the rate of illegal killing
of elephants is paramount. They call for
a global response, including heavy in
situ conservation efforts, enforcement of
end-use markets, and curbing demand
to reduce black market prices for ivory
and ‘‘alleviate the unsustainable
pressure from illegal killing on wild
populations.’’
In developing this proposed rule, we
have also considered the provisions
already in place for protection of
African elephants under CITES, the
AfECA, and the guidance provided in
Director’s Order No. 210. Provisions for
African elephants under CITES and the
AfECA can help to address current
threats to the species, but the ESA can
reach activities that are not regulated
under these other laws. For each type of
activity and specimen, the available
protections provided through the
combination of all applicable laws are
analyzed to explain why the overall
proposed regulatory framework is
appropriate for the conservation of this
species.
General Provisions
We are proposing to revise the 4(d)
rule for the African elephant, in 50 CFR
17.40(e), so that all of the provisions at
50 CFR 17.31 and 17.32 would apply
unless specifically indicated otherwise
in the rule. Any activity that would be
prohibited or exempted under 50 CFR
17.31 and any activity that would
require authorization under 50 CFR
17.32 would be regulated as indicated in
those sections except as provided in this
proposed rule. This legal framework
provides far greater protections for
African elephants compared to the
current rule, which regulates only
certain import to and export from the
United States; possession, sale, offer for
sale, transport, and similar activities
with any African elephant specimen
illegally imported into the United
States; and sale or offer for sale of any
sport-hunted trophy imported into the
United States in violation of a permit
condition. The protections that would
be offered to African elephants through
this proposed rule and reasons each of
the measures is appropriate for the
conservation of the species are
explained below.
Nothing in this rule would affect
other legal requirements applicable to
African elephants and their parts and
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products under other laws such as the
AfECA and CITES. For example, while
an import into the United States that
met all standards as a noncommercial
transshipment under section 10(i) of the
ESA would not be a violation of the
ESA, it would remain a violation of the
import moratorium under the AfECA. In
addition, any person importing or
exporting African elephants or their
parts and products to or from the United
States would need to comply with all
applicable CITES requirements beyond
what are described in this proposed
rule, as well as the general wildlife
import/export requirements found at 50
CFR part 14 and general permitting
requirements in 50 CFR part 13. These
additional requirements, when
applicable, are noted in the text of the
rule.
Take of Live Elephants
The current 4(d) rule does not
regulate the taking of live African
elephants. Take means to harass, harm,
pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or attempt to engage
in any such conduct, an ESA-protected
species and therefore includes both
lethal and certain non-lethal effects on
protected wildlife. Under the proposed
rule, the taking of any live African
elephant would be prohibited within
the United States, within the U.S.
territorial sea, or upon the high seas
(with the latter two acts possibly
occurring during transport of a live
elephant, such as during transport to or
from the United States). Take of
endangered or threatened species is not
regulated under the ESA beyond these
geographic areas, so this change to the
4(d) rule would not have any effect on
the ability of U.S. citizens to travel to
countries that allow hunting of African
elephants and engage in sport hunting.
However, the import of any associated
sport-hunted trophy into the United
States would be regulated as described
below. For any African elephant held in
captivity within the United States, take
would not include animal husbandry
practices that meet minimum standards
under the Animal Welfare Act (AWA; 7
U.S.C. 2131 et seq.), breeding
procedures, and veterinary care that is
not likely to result in injury to the
elephant. (See the definition of ‘‘harass’’
at 50 CFR 17.3.) Therefore this new
restriction would not affect routine
procedures for care of African elephants
that are held in zoos and similar
facilities in the United States. This
prohibition is the same as the
prohibition on take of Asian elephants,
which has been in place since the Asian
elephant was listed under the ESA in
1976.
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The proposed rule would help to
ensure that elephants held in captivity
receive an appropriate standard of care.
Any activities that qualify as take,
including those beyond the standard
veterinary care, breeding procedures,
and AWA care standards described in
the definition of ‘‘harass,’’ would have
to qualify for one of the purposes that
allow for issuance of a threatened
species permit under 50 CFR 17.32.
While the taking of live African
elephants held in captivity within the
United States or being transported is not
a threat to the species, including a
prohibition against take, even for
species that are not native to the United
States, is a standard protection for
threatened species and ensures an
adequate level of care for wildlife held
in captivity.
Interstate and Foreign Commerce
The current 4(d) rule for the African
elephant does not regulate sale or offer
for sale in interstate or foreign
commerce or delivery, receipt, carrying,
transport, or shipment in interstate or
foreign commerce in the course of a
commercial activity of African
elephants (including live animals, parts
and products, and sport-hunted
trophies). The only commercial
activities regulated under the current
4(d) rule are possession, sale or offer for
sale, and receipt, delivery, transport, or
shipment of African elephants
(including parts and products) that were
illegally imported into the United States
and sale or offer for sale of any sporthunted trophy imported into the United
States in violation of a permit condition.
These restrictions will remain in place
through the ESA section 9(c)(1)
prohibition on possession of any CITES
specimen that was imported or exported
contrary to the Convention, prohibitions
under the Lacey Act (16 U.S.C. 3371 et
seq.), and ESA section 11 penalties for
violations of ESA or CITES permit
conditions. We propose to allow
continued sale or offer for sale in
interstate or foreign commerce and
delivery, receipt, carrying, transport, or
shipment in interstate or foreign
commerce in the course of a commercial
activity of live animals and African
elephant parts and products other than
ivory and sport-hunted trophies without
a threatened species permit.
The poaching crisis is driven by
demand for elephant ivory. There is no
information to indicate that commercial
activities involving live elephants or
commercial use of elephant parts and
products other than ivory has had any
effect on the rates or patterns of illegal
killing of elephants and the illegal trade
in ivory. Live animals are occasionally
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removed from the wild and placed in
captivity, often from populations in
small management areas where there
have been local over-population issues
and consequent negative impacts to
habitat. African elephant parts other
than ivory (such as hides) that are
commercialized generally become
available when animals are culled for
management purposes, during salvage of
animals poached for their ivory, or
when problem animals have to be
killed. African elephants are not killed
primarily for their hides or for parts
other than ivory. In addition, the import
and export of live African elephants and
parts and products are regulated under
CITES and other U.S. law. This includes
import into and export from the United
States for both commercial and
noncommercial purposes. It is only
commercial activity associated with
interstate or foreign commerce not
involving import or export that would
not be regulated. We have no
information indicating that such
commercial activity is having any effect
on the conservation status of African
elephants. Requiring individuals to
obtain a threatened species permit
under 50 CFR 17.32 when the removal
of a small number of live elephants or
the incidental harvest of their hides or
hair has no negative impact on the
species would provide no meaningful
protective measures for African
elephants, especially when activities
that also involve import or export to or
from the United States are already
regulated under CITES. For these
reasons, we have determined that it is
not necessary to propose restrictions on
commercial activities in interstate or
foreign commerce with live African
elephants, leather goods, and other
African elephant non-ivory parts and
products.
We do, however, propose to prohibit
sale or offer for sale of ivory in interstate
or foreign commerce and delivery,
receipt, carrying, transport, or shipment
of ivory in interstate or foreign
commerce in the course of a commercial
activity, with some exceptions, and to
prohibit the same commercial activities
with sport-hunted African elephant
trophies. ‘‘Foreign commerce’’ is
defined in section 3 the ESA (16 U.S.C.
1532(9)). ‘‘Commercial activity’’ as used
in the term ‘‘in the course of a
commercial activity’’ is also defined in
section 3 the ESA and means ‘‘all
activities of industry and trade,
including, but not limited to, the buying
or selling of commodities and activities
conducted for the purpose of facilitating
such buying and selling’’ (16 U.S.C.
1532(2)). The Service has defined
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‘‘industry or trade’’ at 50 CFR 17.3 to
mean ‘‘the actual or intended transfer of
wildlife . . . from one person to another
person in the pursuit of gain or profit.’’
The ESA definition of ‘‘commercial
activity’’ includes an exception for
‘‘exhibitions of commodities by
museums or similar cultural or
historical organizations.’’ ‘‘Person’’ is
defined in the ESA to include
corporations, partnerships, trusts,
associations, or any other private entity
along with Federal, State, local, and
foreign governments, as well as
individuals. Activities that would be
prohibited could be authorized through
a threatened species permit under 50
CFR 17.32 for scientific purposes,
enhancement of propagation or survival
of the species, zoological exhibition,
educational purposes, or other special
purposes consistent with the purposes
of the ESA. The ESA does not reach sale
or offer for sale or activities in the
course of a commercial activity that
occur solely within the boundaries of a
State (i.e., intrastate commerce).
There are a number of potential
activities involving ivory or sporthunted trophies that would not be
prohibited under these ESA standards,
provided the activity did not qualify as
‘‘sale’’ or ‘‘offer for sale.’’ Under our
definition of ‘‘industry or trade,’’
commercial use of threatened specimens
does not fall under the prohibition for
‘‘commercial activity’’ unless the
transaction involves the transfer of the
specimen from one person to another
person in the pursuit of gain or profit.
Activities that would involve the
movement of ivory or sport-hunted
trophies in interstate or foreign
commerce for gain or profit where there
would be no transfer of the item to
another person would not be a violation
of this rule. For example, a person who
transported an item containing ivory
across State lines for the purpose of
having the item repaired would not fall
under the prohibition for ‘‘commercial
activity.’’ Not every transaction that
involves the exchange of money
qualifies as commercial activity under
the ESA. In this case, the repair person
would gain financially and the item may
increase in value once repaired, but the
payment of money would be to
compensate the repair person for his or
her labor and expenses and not involve
gain or profit from the ivory item itself
(unless the activity involved using
additional ivory to repair the item,
which would not be allowed). The
donation of an item consisting of or
containing ivory also would not be
considered commercial activity, even if
the donor qualified for a tax benefit
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where the tax benefit is not income.
Exhibitions of ivory items or sporthunted trophies involving gain or profit
would remain exempt under the ESA
definition of ‘‘commercial activity,’’
provided that all entities involved in the
transaction qualified as ‘‘museums or
similar cultural or historical
organizations.’’ Finally, the exemption
available through section 10(h) of the
ESA (16 U.S.C. 1539(h)) would continue
to allow commercialization of qualifying
antiques in interstate and foreign
commerce. There are, however, other
Federal and State restrictions that may
apply to commercial activities involving
ivory, including ‘‘use after import’’
restrictions on certain specimens that
have been imported under CITES (see
below).
As explained in the section Need for
Regulatory Actions, while there has long
been poaching of African elephants for
their ivory and illegal trade in that
ivory, since 2006, there has been an
unprecedented increase in the illegal
killing of African elephants, with
estimates exceeding 20,000 per year in
recent years. Concurrent with this
increase in illegal killing there has been
an alarming increase in illegal trade in
ivory. Recent law enforcement efforts
have demonstrated that the United
States plays a role in the illegal trade
and the associated illegal killing. The
study by Martin and Stiles (2008)
estimated that as much as one-third of
the ivory found in selected metropolitan
areas had been imported into the United
States illegally since the 1989 AfECA
moratorium. Stiles estimated, in his
2014 follow-up study, that as much as
one half of the ivory for sale in two
California cities during his survey had
been imported illegally. All of this
demonstrates the need to impose
restrictions on commercializing
elephant ivory within the United States.
The proposed rule would restrict
commercial activities with African
elephant ivory consistent with the
restrictions in place for endangered
species and those in place for other
threatened species, with a narrow
exception for manufactured items
containing a small (de minimis) quantity
of ivory. Sale or offer for sale of ivory
in interstate or foreign commerce and
delivery, receipt, carrying, transport, or
shipment of ivory in interstate or foreign
commerce in the course of a commercial
activity would also remain available by
threatened species permit under 50 CFR
17.32, provided the person met all of the
requirements of that section as well as
the general permitting requirements
under 50 CFR part 13.
For the same reasons that it is
appropriate for the conservation of
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African elephants to restrict commercial
activities involving ivory in interstate
and foreign commerce, it is appropriate
to restrict commercial activities
involving sport-hunted trophies in
interstate and foreign commerce.
African elephant trophies contain raw
or worked ivory, and in fact sometimes
only the raw or worked ivory from the
animal is imported into the United
States as the trophy. Sport hunting is
considered a noncommercial activity
and CITES regulation of import and
export of sport-hunted trophies reflects
this approach. For example, the listing
of the African elephant in CITES
Appendix II for Botswana, Namibia,
South Africa, and Zimbabwe is
specifically annotated to note that trade
in hunting trophies is for
noncommercial purposes only. In
Resolution Conf. 12.3 (Rev. CoP16), the
CITES Parties have specified that a
hunting trophy is an animal that was
taken for the hunter’s personal use. In
addition, a CITES import permit for an
African elephant trophy hunted in an
Appendix I country can only be issued
if the importing government finds that
the specimen is not to be used for
primarily commercial purposes.
Reflecting these restrictions, CITES
permits for African elephant sporthunted trophies include a permit
condition that the specimen can be used
for noncommercial purposes only.
Consistent with these and similar
restrictions for other CITES species, in
the 2007 revisions to our CITESimplementing regulations, we clarified
that in situations where commercial
import would be prohibited under
CITES, an item imported for
noncommercial purposes could not be
used for commercial purposes after
import into the United States. Under our
CITES regulations, Appendix-I
specimens (except those imported under
a CITES exemption document or before
the species was listed in Appendix I),
CITES Appendix-II specimens with an
annotation that trade is for
noncommercial purposes only, and
CITES Appendix-II specimens without a
noncommercial annotation but listed as
threatened under the ESA can only be
used within the United States for
noncommercial purposes (see 50 CFR
23.55). This restriction under the
authority of CITES reaches intrastate as
well as interstate and foreign commerce.
We propose to prohibit the
commercialization of sport-hunted
African elephant trophies in a manner
consistent with other legal standards
under CITES, including the
commercialization of any manufactured
items that might otherwise qualify
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under the de minimis exception
discussed below.
Since announcing our intentions to
remove or revise the 4(d) rule, we have
received input from the public,
including musicians and musical
instrument manufacturers, museums,
antique dealers, and others who may be
impacted by these proposed changes.
Having considered relevant information
provided by these groups, in this
proposed rule we would allow for
continued commercialization of African
elephant ivory in interstate and foreign
commerce that is not contributing to the
poaching of elephants and where we
believe the risk of illegal trade is low.
We propose to allow sale and offer for
sale of ivory in interstate or foreign
commerce along with delivery, receipt,
carrying, transport, or shipment of ivory
in interstate or foreign commerce in the
course of a commercial activity without
a threatened species permit for
manufactured items containing de
minimis amounts of ivory, provided
they meet the following criteria:
• For items located in the United
States, the ivory was imported into the
United States prior to January 18, 1990
(the date the African elephant was listed
in CITES Appendix I) or was imported
into the United States under a CITES
pre-Convention certificate with no
limitation on its commercial use;
• For items located outside the
United States, the ivory is preConvention (removed from the wild
prior to February 26, 1976 (the date the
African elephant was first listed under
CITES));
• The ivory is a fixed component or
components of a larger manufactured
item and is not, in its current form, the
primary source of value of the item;
• The manufactured item is not made
wholly or primarily of ivory;
• The total weight of the ivory
component or components is less than
200 grams;
• The ivory is not raw; and
• The item was manufactured before
the effective date of the final rule for
this action.
We have included the phrase ‘‘in its
current form’’ in the criterion stating
that the ivory is not the primary source
of value of the item, to make clear that
we would consider the value added by
the craftsmanship (carving, etc.) that
went into the ivory component, not just
the value of the ivory itself. We use the
phrase ‘‘wholly or primarily’’ (in the
next criterion) as those terms are
commonly defined in the dictionary. We
consider ‘‘wholly’’ to mean ‘‘entirely,
totally, altogether’’ and ‘‘primarily’’ to
mean ‘‘essentially, mostly, chiefly,
principally.’’ We have chosen 200 grams
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as the weight limit because we
understand that this is the approximate
maximum weight of the ivory veneer on
a piano with a full set of ivory keys and
that this quantity would also cover most
other musical instruments with ivory
trim or appointments. We also
understand the 200-gram limit would
cover a broad range of decorative and
utilitarian objects containing small
amounts of ivory (insulators on old tea
pots, decorative trim on baskets, and
knife handles, for example).
We have intentionally crafted this
exception to allow commercial activity
in a very narrow class of items. While
we have given careful consideration to
the types of items containing African
elephant ivory for which we could
allow continued commercialization in
interstate and foreign commerce
(because we do not believe the trade is
contributing to the poaching of
elephants and we believe the risk of
illegal trade is low) we seek comment
from the public on the specific criteria
we have proposed to qualify for this de
minimis exception. In particular, we are
interested in input on criterion (iii), the
ivory is a fixed component or
components of a larger manufactured
item and is not in its current form the
primary source of value of the item and
criterion (v), the manufactured item is
not made wholly or primarily of ivory.
We seek comment on the impact of not
including these criteria in the rule and
whether these criteria are clearly
understandable.
Examples of items that we do not
expect would qualify for the de minimis
exception include chess sets with ivory
chess pieces (both because we would
not consider the pieces to be fixed
components of a larger manufactured
item and because the ivory would likely
be the primary source of value of the
chess set), an ivory carving on a wooden
base (both because it would likely be
primarily made of ivory and the ivory
would likely be the primary source of its
value), and ivory earrings or a pendant
with metal fittings (again both because
they would likely be primarily made of
ivory and the ivory would likely be the
primary source of its value). For the
reasons discussed in the section Import
and export of ivory, other than sporthunted trophies, this de minimis
exception would not apply to
manufactured items containing ivory
that were imported to or exported from
the United States for law enforcement or
scientific purposes or to otherwise
qualifying inherited items or items in a
household move that were imported or
exported under one of the exceptions in
this rule.
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Our law enforcement experience over
the last 25 years (see the U.S.
involvement in the illegal ivory trade
section) has shown that the vast
majority of items in the illegal ivory
trade are either raw ivory (tusks and
pieces of tusks) or manufactured pieces
(mostly carvings) that are composed
entirely or primarily of ivory. As
described earlier, in November 2013, the
Service destroyed six tons of seized
ivory that represented over 25 years of
law enforcement efforts to control illegal
ivory trade in the United States. The six
tons of contraband ivory did not include
any items that would be covered by this
exception. As demonstrated by the
thousands of seized ivory items
destroyed in the ‘‘crush,’’ ivory
traffickers are not manufacturing items
with small amounts of pre-Convention
ivory or dealing in such items. Rather,
because the incentive to deal in illegal
ivory is economic, the trade focuses on
raw ivory and large pieces of carved
ivory from which the highest profits can
be made. Likewise, in the case described
earlier involving the Philadelphia
African art dealer, which included the
seizure of approximately one ton of
ivory, all of the seized ivory was in the
form of whole ivory carvings and did
not include any items that would
qualify under the proposed de minimis
exception.
The information we have about the
domestic market, including the surveys
conducted by Martin and Stiles and our
own investigations, indicates that trade
in the types of manufactured items that
would qualify for this proposed de
minimis exception is not contributing to
or driving the illegal ivory trade. Martin
and Stiles identify recently made and
presumably illegally imported items as
figurines, netsukes, and jewelry, none of
which would qualify under the criteria
proposed for a de minimis exception.
The requirement that the ivory is
either pre-Convention (removed from
the wild prior to February 26, 1976) or
was imported into the United States
prior to 1990, and the requirement that
the item must have been manufactured
before the effective date of a final rule
would make it unlikely that
commercialization of ivory under this
exception would directly contribute to
the future illegal killing of elephants.
Noting the types of items that make up
the illegal trade, and requiring that the
ivory be a fixed component of a larger
manufactured item, that the ivory is not
raw, that it is not the primary source of
value of the item, that the total weight
of the ivory is less than 200 grams, and
that the manufactured item is not made
wholly or primarily of ivory would
minimize the possibility of the ivory
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contributing to either global or U.S.
illegal ivory markets or that the de
minimis exception could be exploited as
a cover for the illegal trade.
These changes will allow us to
appropriately regulate the U.S. domestic
market in ivory as well as U.S.
participation in global markets for ivory
and achieve our goal of conserving the
African elephant, while allowing
limited continued trade that is not
contributing to the poaching of
elephants. Improved domestic controls
will make it more difficult to launder
illegal elephant ivory through U.S.
markets, which we believe will
ultimately contribute to a reduction in
the illegal killing of African elephants.
Since announcing our intention to
revise the 4(d) rule for the African
elephant and prohibit sale and offer for
sale of African elephant ivory in
interstate commerce, we have heard
from a number of representatives of the
U.S. museum community. They have
expressed their concern about how
prohibitions on interstate commerce
will impact their ability to acquire items
for museum collections. We recognize
that museums can play a unique role in
society by curating objects that are of
historical and cultural significance. We
are considering including an exception
to the prohibitions on interstate
commerce for museums, either through
this rulemaking process or through a
separate rulemaking under the ESA. We
seek comment from the public on this
issue. Additionally, we seek comment
on how to best define museums in this
regard, given the diverse interests that
they serve.
Import and Export, Other Than Ivory
and Sport-Hunted Trophies
Under the current 4(d) rule, African
elephants and African elephant parts
and products other than sport-hunted
trophies and ivory (e.g., live elephants,
including those with tusks, and leather
products) may be imported into or
exported from the United States without
a threatened species permit, provided
all permit requirements of 50 CFR parts
13 (general permitting regulations) and
23 (CITES regulations) have been met.
This would not change with the
proposed revisions to the 4(d) rule. We
would, however, add a clarification that
the requirements at 50 CFR part 14
(general import, export, and transport
regulations) must also be met.
As noted earlier, the import into the
United States of live elephants,
including those with tusks, is not
regulated under the AfECA. In section
4202(2) (16 U.S.C. 4202(2)) of the
statute, Congress found that it is the
large illegal trade in ivory that is the
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major cause of decline of the species
and threatens its existence. Although
live elephants may have tusks, there is
no information indicating that the
limited import of live elephants for
conservation or zoological exhibition
purposes has ever negatively affected
the species. Live African elephants are
only occasionally imported into the
United States (most live elephants held
in captivity in the United States are
Asian elephants). During the 5 years
from 2009 to 2013, there were eight live
African elephants imported into the
United States (four in 2011 and four in
2013), all for zoological or educational
purposes. Three of these animals were
pre-Convention (removed from the wild
prior to 1976); the other five were either
captive born or captive bred. In
addition, the AfECA’s focus on
regulating ivory primarily through
moratoria on the import of raw and
worked ivory (not elephants themselves)
indicates Congress’ intent to regulate
ivory as a commodity, not ivory that is
attached to a live elephant and therefore
cannot be commercialized separate from
the elephant itself. Likewise, the AfECA
prohibitions all address the import or
export of raw or worked ‘‘ivory,’’ not
elephants. Finally, the definition of
‘‘raw ivory’’ also indicates that Congress
intended the term not to apply to live
elephants. The term raw ivory in section
4244(10) (16 U.S.C. 4244(10)) means any
‘‘tusk, and any piece thereof, the surface
of which, polished or unpolished, is
unaltered or minimally carved.’’ The
references to pieces of tusks and the
polishing or carving of tusks when read
in the context of the definition and
application of the term ‘‘raw ivory’’ in
the statute indicate that the definition is
speaking of tusks that are no longer
attached to a live animal.
When establishing regulations for
threatened species under the ESA, the
Service has generally adopted
restrictions on the import and export of
live as well as dead animals and their
parts and products, either through a 4(d)
rule or through the provisions of 50 CFR
17.31. In this case, import and export of
both live and dead African elephants
and all parts and products are already
carefully regulated under CITES. Under
CITES and the U.S. regulations that
implement CITES at 50 CFR part 23, the
United States regulates and monitors all
commercial and noncommercial trade in
African elephants and any parts and
products that are imported into or
exported from the country. All African
elephant populations are protected
under CITES, with most populations
listed in Appendix I and only four
populations (those in Botswana,
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Namibia, South Africa, and Zimbabwe)
listed in Appendix II. Import into and
export from the United States of African
elephant specimens will continue to
require CITES documentation.
Under CITES, for nearly all live or
dead elephants and elephant parts or
products, including those from
Appendix II populations, the exporting
country must issue an export permit
that is supported by findings that the
specimen was legally acquired under
national laws, that the export will not be
detrimental to the survival of the
species, and, for live animals, that the
elephant will be shipped in a manner
that minimizes the risk of injury,
damage to health, or cruel treatment.
The CITES export permit must be
presented upon export and must also be
presented to U.S. officials upon import
into the United States. For nearly all
Appendix-I African elephant specimens,
a CITES import permit would also have
to be issued by the Service after finding
that the import will be for purposes that
are not detrimental to the survival of the
species, that the specimen will not be
used for primarily commercial
purposes, and, for a live animal, that the
proposed recipient is suitably equipped
to house and care for the elephant. Any
later re-export of African elephant
specimens would require additional
CITES documents.
Some limited exceptions to these
permitting requirements exist.
Consistent with an exception in the
Convention, the Service provides an
exemption from permitting
requirements for personal and
household effects, but only for dead
specimens and not for most AppendixI specimens. Personal and household
effects must be personally owned for
noncommercial purposes, and the
quantity imported or exported must be
necessary or appropriate for the nature
of the trip or household use. The
exemption is extremely limited for
items containing African elephant ivory
(see 50 CFR 23.15(f)). Not all CITES
countries have adopted the personal and
household effects exemption, so
individuals who might cross an
international border with an African
elephant item and want to take
advantage of this exemption would need
to check with the Service and any
country of transit in advance for
documentation requirements. There is
also an exemption for pre-Convention
animals and parts or products, but a
person who wants to transport an item
under this exemption must obtain and
present to government officials upon
export and import a CITES preConvention certificate that verifies that
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the specimen was acquired before the
Convention applied to it.
In addition to the requirements under
CITES, individuals who import or
export wildlife and wildlife products
into or from the United States must file
wildlife declaration forms with the
Service’s Office of Law Enforcement and
must use designated ports. Individuals
who are in the business of importing
and exporting wildlife and wildlife
products must be licensed by the
Service. These requirements allow us to
monitor the species and quantity of
wildlife that are imported into and
exported from the United States and
ensure that such trade is legal.
The need to address the increase in
illegal killing and illegal trade of
African elephants is linked to the
economic value of and international
market in ivory. There is no information
indicating that the conservation status
and management needs of the species
are linked to the occasional import of
live elephants into the United States for
captive propagation programs or public
education and display, or to the market
in hides and other non-ivory parts or
products. The Service monitors U.S.
imports and exports of elephant
specimens through wildlife declaration
forms, and all CITES Parties are
required to submit annual reports on
trade in CITES species and the number
and types of CITES permits and
certificates issued each year. This
information verifies that import and
export of live African elephants and
parts or products other than ivory and
sport-hunted trophies is small and does
not affect the conservation of the
species. There is no evidence of an
illegal market in live elephants or parts
and products other than ivory.
In addition, as noted above, import
and export of African elephant
specimens would continue to be strictly
regulated through the documentation
procedures and required findings under
CITES. Particularly relevant to the major
threats facing African elephants, these
CITES documents are not issued unless
the importing or exporting countries
find that the import or export would not
be detrimental to the survival of the
species, that the live animal or part or
product was legally acquired, and that
the specimen will not be used for
primarily commercial purposes.
Requiring individuals to obtain an ESA
threatened species permit in addition to
the required CITES documents prior to
import or export of live animals and
parts or products other than ivory and
trophies would add no meaningful
protection for the species and would be
an unnecessary overlay of authorization
on top of existing documentation that
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already ensures that the import or
export is legal and not detrimental to
the survival of the species. Therefore,
because the import and export of live
African elephants and parts or products
other than ivory and sport-hunted
trophies must comply with the strict
provisions of CITES and other U.S.
import/export requirements and because
the import or export of such animals
and parts or products poses no risk to
the species, we find that authorization
under the ESA to import or export
African elephant specimens other than
sport-hunted trophies or ivory remains
neither necessary nor appropriate
provided that all import and export
requirements under CITES and other
U.S. laws have been met.
Import and Export of Sport-Hunted
Trophies
As noted earlier, the ESA does not
prohibit U.S. hunters from traveling to
other countries and taking threatened
species, but authorization may be
required under the ESA to import the
sport-hunted trophy into the United
States. We are proposing to limit the
number of sport-hunted African
elephant trophies that may be imported
into the United States to two per hunter
per year. This action is intended to
address a small number of
circumstances in which U.S. hunters
have participated in legal elephant
culling operations and imported, as
sport-hunted trophies, a large number of
elephant tusks from animals taken as
part of the cull. We propose to disallow
this activity, which has resulted, in
some cases, in the import of commercial
quantities of ivory as sport-hunted
trophies. Based on our import records,
we expect this proposed change to
impact fewer than 10 hunters per year.
This proposed change is consistent
with the purposes of the ESA and
CITES. Sport hunting is meant to be a
personal, noncommercial activity.
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. Given the
current conservation concerns with
escalating illegal trade in ivory and the
associated levels of illegal killing to
supply that trade, it is consistent with
the purposes of the ESA and other
provisions in this proposed rule
regulating commercialization of ivory to
more closely regulate activities that
have resulted in the import of large
quantities of raw ivory into the United
States.
This provision is also consistent with
Congress’ intent under the AfECA.
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Congress included in the AfECA an
exemption from the import moratorium
for sport-hunted trophies legally taken
in an elephant range country, but that
was on the basis of finding that sport
hunting does not directly or indirectly
contribute to the illegal trade in African
elephant ivory. The escalating illegal
trade of ivory is currently driving
unprecedented increases in the illegal
killing of elephants. We therefore find it
is necessary to use our authority under
section 4(d) of the ESA to ensure that
ivory imported into the United States as
sport-hunted trophies is in fact the
result of sport hunting and is not
commercialized. Section 4241 of the
AfECA (16 U.S.C. 4241) expressly states
that the Service’s authority under the
AfECA is in addition to and does not
affect the Service’s legal authority under
the ESA, which includes our legal
authority under section 4(d). The AfECA
therefore does not preclude us from
using our authority under the ESA to
limit the number of African elephant
trophies imported by an individual
hunter each year to appropriate levels.
For certain species, the parties to CITES
have set limits on the number of
trophies that any one hunter may import
in a calendar year, which currently for
leopards is no more than two, for
markhor is no more than one, and for
black rhinoceros is no more than one.
See 50 CFR 23.74(d). Taking into
consideration these decisions by the
parties to CITES, we similarly propose
to set the limit at two African elephants
per hunter per year.
We are also proposing to require
issuance of a threatened species permit
under 50 CFR 17.32 for import of all
African elephant sport-hunted trophies.
The current 4(d) rule provides
conditions under which sport-hunted
African elephant trophies may be
imported into the United States, one of
which is that the Service has made a
determination that the killing of the
trophy animal would enhance the
survival of the species.
For elephant trophies taken from
CITES Appendix-I populations, we
issue a combined CITES/ESA import
permit and the ESA finding is
communicated through that permit.
Under the current 4(d) rule, we do not
issue an import permit for trophies from
Appendix-II populations and the ESA
finding is communicated through public
notification, including in the Federal
Register.
For the import of sport-hunted
trophies from Appendix-II populations,
revision of the 4(d) rule would mean
that the enhancement finding required
under the current 4(d) rule would be
communicated through the threatened
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species permitting process under 50
CFR 17.32. This change in procedure
would not result in any significant
burden to U.S. hunters and would not
affect whether future hunters would be
able to obtain trophy import permits.
The standards for making enhancement
findings for each African elephant range
country under the current 4(d) rule are
the same as the standards for making
findings for import permits for sporthunted trophies of other species
classified as threatened, where such
findings are required. The standards for
making enhancement findings under the
current 4(d) rule are also the same as the
standards that would be used in the
future for making enhancement findings
for African elephant trophy imports
through the threatened species permit
process. Permits have always been
required for the import of African
elephant trophies from any Appendix-I
country, so it is only trophies from the
four Appendix-II countries that would
now also require import authorization
through a threatened species permit.
Hunters would benefit from the
consistency of having all African
elephant import authorizations
provided through the permitting process
(we expect it would reduce confusion
regarding the process for obtaining
import authorization, depending on the
country) and benefit from a process that
would allow them to submit relevant
information through the permit
application. Hunters seeking
authorization to import a trophy from an
Appendix-II population would also now
be able to take advantage of the process
for requesting reconsideration and
appeal of a permit denial under 50 CFR
13.29. The Service would benefit from
having a consistent process for
authorizing ESA importation of African
elephant sport-hunted trophies, as well
as having the ability to obtain current
information from hunters that is
relevant to making the enhancement
findings.
As provided in section 9(c)(2) (16
U.S.C. 1538(c)(2)) and our regulations at
50 CFR 17.8, the ESA provides a limited
exemption for the import of some
threatened species, which is frequently
used by hunters to import sport-hunted
trophies. 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 rebutted,
however, when information shows that
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the species’ conservation and survival
would benefit from the granting of ESA
authorization prior to import. The
Service determined that this was the
case in 1997 and 2000, when the four
populations of African elephants were
transferred from CITES Appendix I to
CITES Appendix II and we retained the
requirement for ESA enhancement
findings prior to the import of sporthunted trophies. We amended the
African elephant 4(d) rule in June of
2014, again maintaining the requirement
for an ESA enhancement finding prior
to allowing the import of African
elephant sport-hunted trophies.
Our proposal to require issuance of
threatened species enhancement
permits under 50 CFR 17.32 for the
import of any African elephant hunting
trophy would change the procedure for
issuing ESA authorization but not
change the requirement that an
enhancement finding be made prior to
import into the United States. As
described in the Need for Regulatory
Actions section, the overall
conservation status of African elephants
has deteriorated in the years following
the transfer of the four populations of
African elephants to CITES Appendix II.
Extensive and well-documented
information indicates that the escalating
rate of illegal killing of African
elephants is driven by the illegal
markets for elephant ivory. This
information affirms the need to continue
making enhancement findings prior to
allowing the import of sport-hunted
trophies that consist entirely or in part
of the ivory tusks from the elephant.
Authorizing importation of all sporthunted trophies through threatened
species enhancement permits would
allow us to more carefully evaluate
trophy imports in accordance with legal
standards and the conservation needs of
the species. For example, the issuance
of threatened species enhancement
permits under 50 CFR 17.32 would
mean that the standards under 50 CFR
part 13 would also be in effect, such as
the requirement that an applicant
submit complete and accurate
information during the application
process and the ability of the Service to
deny permits in situations where the
applicant has been assessed a civil or
criminal penalty under certain
circumstances, failed to disclose
material information, or made false
statements. Therefore, we have
determined that the additional
safeguard of requiring the issuance of
threatened species enhancement
permits under 50 CFR 17.32 prior to the
import of sport-hunted trophies is
warranted.
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In addition, the 4(d) rule would
incorporate certain restrictions under
the AfECA on the import and export of
sport-hunted trophies. We do not have
separate AfECA regulations and
consider that including restrictions in
the 4(d) rule that have their source in
the AfECA would provide hunters and
other members of the public easy access
to information on all requirements that
apply to activities with African elephant
sport-hunted trophies. All of these
provisions are also appropriate
conservation measures for the species
under the ESA that ensure that hunting
of African elephants by U.S. citizens is
sustainable and legal under the laws of
the range country and that any ivory
associated with the trophy does not
contribute to the illegal killing of
elephants. Adopting these AfECA
provisions as appropriate conservation
measures for the species under section
4(d) of the ESA would also make a
violation of relevant provisions of the
AfECA a violation of the ESA, thus
increasing protections for African
elephants when a person violates the
AfECA.
The AfECA provides for the import of
sport-hunted African elephant trophies
but only if the trophy was legally taken
in an African elephant range country
that has declared an ivory export quota
to the CITES Secretariat. These
requirements have been incorporated
into the proposed 4(d) rule. Also, the
AfECA provides an exemption from any
moratorium for the import of African
elephant sport-hunted trophies, but the
exemption applies to import only, not
export. The export of all raw ivory is
prohibited under section 4223(2) of the
AfECA (16 U.S.C. 4223(2)). We propose
to incorporate into the 4(d) rule the
AfECA prohibition on the export of raw
ivory. Export of raw ivory would not be
allowed even under an ESA threatened
species permit because the AfECA
prohibition would still stand; similarly,
export of raw ivory that qualified as an
antique under the ESA, while not
regulated under the proposed 4(d) rule,
would still be prohibited under the
AfECA. We have also proposed minor
revisions to the 4(d) rule to clarify that
general wildlife import requirements
under 50 CFR part 14 also apply to the
import of sport-hunted trophies and to
more closely align import requirements
with the recommendations in CITES
Resolution Conf. 10.10 (Rev. CoP16),
Trade in elephant specimens.
The revised 4(d) rule would also
allow the noncommercial export of
worked ivory that was imported as part
of a sport-hunted trophy provided it
meets one of the exceptions we have
proposed for scientific or law
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enforcement purposes or as part of a
musical instrument, traveling
exhibition, or household move or
inheritance. Worked ivory that had been
imported as a sport-hunted trophy could
also be exported if it qualifies as an ESA
antique.
Import and Export of Ivory, Other Than
Sport-Hunted Trophies
Under the current 4(d) rule, import of
raw or worked ivory other than sporthunted trophies is allowed only if it is
a bona fide antique greater than 100
years old or it is being imported
following export from the United States
after being registered with the Service.
Under the terms of the 1989 AfECA
moratorium, the import of raw and
worked African elephant ivory, other
than ivory from legally taken sporthunted trophies, is prohibited from both
African elephant range countries and
intermediary countries (i.e., countries
that export ivory that did not originate
in the country).
Under the proposed revisions to the
4(d) rule, import of ivory other than
sport-hunted trophies would be
prohibited, with limited, narrow
exceptions including: the import of raw
ivory by a government agency for law
enforcement purposes or for a genuine
scientific purpose that will contribute to
the conservation of the African
elephant; and the import of worked
ivory under these same exceptions for
law enforcement or scientific purposes
that will contribute to the conservation
of the species, or as part of a musical
instrument, an item in a traveling
exhibition, or as part of a household
move or inheritance. The export of raw
ivory would be prohibited under the
proposed revisions to the 4(d) rule and
the export of worked ivory would be
limited to those items that qualify for
the exceptions described above. Section
4(d) of the ESA does not apply to items
that qualify as antiques and therefore
these proposed prohibitions on import
and export of ivory do not apply to ESA
antiques. However, as noted previously,
the prohibitions on import and export of
ivory under the AfECA would still
apply, regardless of the age of the item.
The proposed revisions are consistent
with the 1989 AfECA moratorium, and
are generally consistent with the
Service’s Director’s Order No. 210, as
amended on May 15, 2014. We have
determined that these provisions are
appropriate under the ESA for the
conservation of the African elephant.
Restrictions on import and export are
appropriate under both the AfECA and
the ESA because strict regulation of the
import and export of ivory are necessary
to prevent U.S. citizens and others
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subject to the jurisdiction of the United
States from engaging in activities that
could contribute to the illegal killing of
elephants. Nonetheless, situations
where not allowing the activity could
actually be detrimental to the
conservation of the species, or limited
circumstances where careful controls
would be in place to make it likely that
the activity will not contribute to illegal
trade in ivory or the killing of elephants
for their ivory, can be allowed.
Adopting the AfECA provisions as
appropriate conservation measures for
the species under section 4(d) of the
ESA would make a violation of the
AfECA a violation of the ESA, thus
increasing protections for African
elephants when a person violates the
AfECA. Finally, because there are no
AfECA regulations in the Code of
Federal Regulations, the public would
benefit from having all legal
requirements relating to the import and
export of African elephant ivory located
in one place through the 4(d) rule.
On June 9, 1989, the Service
established the current moratorium on
the importation of both raw and worked
ivory (other than that from sport-hunted
trophies) after finding that most ivory
was traded outside of the CITES Ivory
Trade Control System that existed at
that time and that illegal and excessive
taking of elephants was taking place at
unsustainable levels (54 FR 24758).
African elephant range countries were
unable to effectively control taking of
elephants and intermediary countries
could not ensure that all ivory in trade
originated from legal sources.
Specifically, the Service found that most
ivory range countries had such low
elephant populations that the countries
had determined that no sustainable
harvest was possible and had requested
no ivory export quota for that year; that
there was likely no sustainable harvest
of elephants throughout most of Africa,
even for those countries that had export
quotas, due to declining populations;
and that most African elephant range
countries had significant poaching
problems. For intermediary countries,
the Service determined that all major
intermediary countries that were parties
to CITES at that time had engaged in
import of raw ivory from other
intermediary countries (alone a criterion
for establishment of a moratorium under
the AfECA) and that due to the virtual
impossibility of distinguishing legal
from illegal ivory, it was no longer
possible for any intermediary country to
ensure that it was not importing ivory
from a range country in violation of the
laws of that country.
In recent years, many of the
conditions that supported imposing the
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moratorium have continued or even
worsened. In particular, recent
information shows that for elephant
range countries, the taking of elephants
is not effectively controlled and the
amounts of raw ivory that are being
illegally exported from these countries
are undermining the conservation of
elephants. For intermediary countries,
recent information on the scope and
extent of illegal ivory trade shows that
these countries are importing (through
illegal trade) raw or worked ivory that
originates in range countries in violation
of the laws of the range countries.
However, some actions in the United
States, in other countries, and through
CITES, have been taken to strengthen
controls on poaching and illegal trade.
In January 1990, all populations of
African elephants were transferred from
CITES Appendix II to Appendix I,
which generally ended 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, 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 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. Since then, the CITES Parties
have revised the Appendix-II listing
annotation three times. The current
annotation, in place since 2007, covers
the Appendix-II populations of
Botswana, Namibia, South Africa, and
Zimbabwe and allows export of: Sporthunted trophies for noncommercial
purposes; live animals to appropriate
and acceptable destinations; hides; hair;
certain ivory carvings from Namibia and
Zimbabwe for noncommercial purposes;
and a one-time export of specific
quantities of raw ivory, once certain
conditions had been met (this export, to
China and Japan, took place in 2009). As
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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.
Most recently, the Service determined
in April 2014 that import of sporthunted trophies from Tanzania and
Zimbabwe could not be allowed until
new information is received, because
the killing of African elephants for
trophies does not meet the enhancement
standard under the current 4(d) rule.
The Service understands that Botswana
has closed its sport-hunting program on
government land for 2014 (although
hunting on private concessions
continues) and is not currently allowing
exports. South Africa and Namibia
continue to have well-managed elephant
conservation programs; the Service’s
findings remain in place that the killing
of trophy animals from these countries
for import into the United States
enhances the survival of the species.
All of this information, along with the
recent levels of illegal killing and illegal
trade as described in the section Need
for Regulatory Actions, indicates that
the circumstances facing African
elephants and involving ivory in both
range countries and intermediary
countries support adoption of these
restrictions for the species under the
ESA. The threats facing the species call
for all appropriate actions to restrict the
import of African elephant ivory where
that import is likely to contribute to
commercializing elephant ivory. We
believe that it is appropriate to allow
certain limited exceptions to these
import restrictions under the 4(d) rule,
however, where import either would be
beneficial to law enforcement or the
conservation of the species, or where
import of certain worked ivory meets
strict criteria and is regulated in such a
manner that it does not contribute to the
illegal trade in ivory and poses no risk
to elephant populations.
We propose to allow the import of
raw or worked ivory into the United
States or the export of worked ivory
from the United States when it would be
directly beneficial for law enforcement
efforts. Under this exception, raw or
worked ivory could be imported into the
United States and worked ivory could
be exported from the United States only
by an employee or agent of a Federal,
State, or tribal government agency for
law enforcement purposes. Specimens
from protected species are frequently
used as evidence to prosecute violations
of law in the United States, and this
may require the import of ivory from
other countries. Likewise, there may be
situations where worked ivory would
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need to be exported from the United
States by a Federal, State, or tribal
agency to assist with a law enforcement
action in another country. Not having
this exception would hinder the
Service’s ability to enforce Federal laws
such as the AfECA, the ESA, and the
Lacey Act that protect African elephants
and other wildlife. It could also hinder
other Federal agencies, States, and tribes
from effective enforcement of their laws.
Not including this exception would be
contrary to the AfECA’s policy to assist
in the conservation and protection of
the African elephant by supporting the
conservation programs of African
countries and the CITES Secretariat,
which represents the interests of all
parties to CITES including the United
States. The limitation that ivory could
only be imported or exported by an
employee or agent of a Federal, State, or
tribal government would ensure that the
exception is invoked only in
appropriate circumstances. Any ivory
imported or exported under this
exception would be strictly for
noncommercial law enforcement
purposes, and therefore could not
subsequently be sold or offered for sale
in interstate or foreign commerce or
delivered, received, carried, transported,
or shipped in interstate or foreign
commerce in the course of a commercial
activity, even if it qualified under the de
minimis exception. The limited
applicability of this exception to
noncommercial import or export by
government officials for law
enforcement purposes indicates that no
ESA threatened species permit should
be required. Such a permit would
provide no protection for the species
and would inhibit law enforcement
officials’ ability to respond quickly to
enforcement needs involving the import
or export of African elephant ivory.
We also propose to allow the import
or export of ivory when it would
contribute to the conservation of African
elephants. Under this exception, either
raw or worked African elephant ivory
could be imported into the United
States and worked ivory could be
exported from the United States for
genuine scientific purposes that would
benefit elephant conservation. For
example, researchers in the United
States have developed techniques to
determine the origin of ivory, and the
import of ivory samples is essential to
this work. In such instances, prohibition
of import would hinder science that
could assist in protecting the species
from poaching or illegal trade in ivory,
or could result in valuable information
that addresses other threats to the
species. Similarly, the export of worked
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African elephant ivory could assist both
U.S. scientists that are located outside
the United States and scientists from
other countries in their work to
conserve the species. We believe that
allowing under the 4(d) rule import and
export of ivory in these circumstances is
necessary and appropriate for the
conservation of the African elephant; it
is also consistent with the AfECA’s
purpose to ‘‘perpetuate healthy
populations of African elephants.’’ Any
ivory imported or exported under this
exception would be strictly for genuine
scientific purposes, and could not
subsequently be sold or offered for sale
in interstate or foreign commerce or
delivered, received, carried, transported,
or shipped in interstate or foreign
commerce in the course of a commercial
activity, even if it qualified under the de
minimis exception. The requirement to
obtain a threatened species permit
under 50 CFR 17.32 prior to import or
export would ensure that the activity
meets the standard of being for a
genuine scientific purpose and that the
science will actually contribute to the
conservation of African elephants.
We are also proposing to allow the
noncommercial import or export of
carefully regulated items containing
worked elephant ivory that are
appropriate exceptions to the import
moratorium and appropriate provisions
under the 4(d) rule. None of these
exceptions allows the import or export
of raw ivory. The exceptions are for
qualifying musical instruments, items in
certain travelling exhibitions, and
qualifying items that are part of an
inheritance or household move.
Under all three of these exceptions,
the importer or exporter would need to
show that the African elephant ivory in
the item was legally acquired and
removed from the wild prior to February
26, 1976 (the date the African elephant
was first listed under CITES). This does
not necessarily mean that the current
owner of an item containing ivory, a
musical instrument, for example,
acquired the instrument or the ivory in
the instrument prior to February 1976.
It means that there is sufficient
information to show that the ivory was
harvested (taken from the wild) prior to
February 26, 1976, even though the
instrument may not have been
manufactured until after that date. It
also means that there is sufficient
information to show that the ivory was
harvested in compliance with all
applicable laws of the range country and
that any subsequent import and export
of the ivory and the instrument
containing the ivory was legal under
CITES and other applicable laws
(understanding that the instrument may
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have changed hands many times before
being acquired by the current owner).
These requirements would ensure that
any item imported or exported under
one of these three exceptions originated
from elephants that were legally taken
prior to the date that African elephants
were first protected under CITES, the
ESA, and the AfECA and therefore
before contemporary laws and programs
were developed to address current
threats to the species. The ivory would
have originated from elephants taken
prior to development of the
conservation programs of African
countries and the CITES Secretariat
referenced in section 4203 of the AfECA
that the AfECA was enacted to support.
This would also mean that any ivory
imported or exported under the
exceptions originated before U.S.
citizens and other individuals subject to
the jurisdiction of the United States
were first regulated under these laws.
The showing that the ivory was legally
acquired would ensure that the ivory
contained in the item was not
previously part of the global market in
illegal ivory. Thus these requirements
would minimize the chances that the
worked ivory in items imported or
exported under these three exceptions
contributed to the killing of elephants
that the AfECA and listing under the
ESA and CITES were designed to
address or that the owner or others who
may have owned the ivory played a role
in the taking of the elephant in
contravention of U.S. laws to protect the
species.
Under all three of these exceptions,
the importer or exporter would have to
obtain the appropriate CITES document
showing that the import or export is in
full compliance with CITES
requirements. The requirement to obtain
appropriate CITES documents would
ensure that each item imported or
exported under one of these three
exceptions qualifies under CITES’ strict
standards and that all such import and
export will be monitored and reported
to the CITES Secretariat in each Party’s
annual report. Any musical instrument
or item in a traveling exhibition would
also have to be securely marked or
uniquely identified so that authorities at
U.S. and foreign ports can verify that the
item presented for import or export is
actually the specimen for which the
CITES document was issued. While
items imported or exported under a
CITES pre-Convention certificate (as
part of a household move or
inheritance) do not specifically need to
be marked or identified, port authorities
would verify that the description and
quantity of any items presented for
import or export match what is
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described in the CITES document. All of
this would ensure that each import or
export of items under these exceptions
is verified and monitored, which
ensures that all such import and export
remains legal.
A CITES musical instrument
certificate or equivalent CITES
document would be issued for the
import and export of personally owned
instruments containing African elephant
ivory to facilitate the frequent,
noncommercial, cross-border movement
of instruments that are being used for
noncommercial purposes.
Noncommercial purposes could include
personal use, performance, display, or
competition where the musician is
financially compensated for his or her
participation, but does not include
financial gain through activities such as
sale or lease of the instrument itself.
Under the terms for obtaining a CITES
musical instrument certificate
(contained in CITES Resolution Conf.
16.8, Frequent cross-border noncommercial movements of musical
instruments), the individual seeking a
certificate would need to demonstrate
that the CITES specimens contained in
the instrument, in this case African
elephant ivory, were acquired (removed
from the wild) prior to February 26,
1976 (the date that African elephants
were first listed under CITES). In
addition, the country issuing the
certificate would need to find that the
elephant ivory used to manufacture the
instrument was legally acquired under
CITES. The issuing country would also
include as a condition on the certificate
a statement that the ivory covered by the
certificate is for noncommercial use
only and may not be sold, traded, or
otherwise disposed of outside the
certificate holder’s country of usual
residence. This restriction would also be
included as a prohibition in the 4(d)
rule, although musical instruments
containing ivory that are owned by
individuals whose residence is the
United States could be sold or offered
for sale in interstate or foreign
commerce or delivered, received,
carried, transported, or shipped in
interstate or foreign commerce in the
course of a commercial activity once the
instrument was returned to the United
States if the instrument qualified under
the de minimis exception. Musical
instrument certificates are used like
passports. Upon each export and
import, the original certificate is
presented to the appropriate border
control officer, who inspects the
certificate, verifies that the certificate
corresponds to the instrument presented
for import, and validates the certificate
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to document the history of each crossborder movement. All of these
requirements would limit use of the
exception to personally owned musical
instruments containing legally acquired,
pre-Convention ivory, and ensure that
any instrument entering the United
States would be used for
noncommercial purposes only, and that
an instrument would not be
commercialized while traveling under
the authorization of the CITES
certificate. These requirements provide
adequate assurances that any import or
export of such instruments would not
contribute to either the illegal trade in
elephant ivory or the illegal killing of
elephants.
A CITES traveling exhibition
certificate would be issued for the
import and export of items consisting of
or containing African elephant ivory to
facilitate the frequent cross-border
movement of items that are part of an
orchestra, museum, or similar
exhibition registered in the country in
which the traveling exhibition is based.
Under the terms for obtaining the CITES
certificate (contained in CITES
Resolution 12.3 (Rev. CoP16), Permits
and certificates and in our regulations at
50 CFR 23.49), the ivory in the traveling
exhibition must be pre-Convention
ivory (i.e., it was acquired prior to
February 26, 1976, the date that African
elephants were first listed under CITES).
Similar to the musical instrument
certificate, the country issuing the
certificate would need to find that any
item containing elephant ivory was
legally acquired under CITES and
would be returned to the country in
which the exhibition is based. The
country issuing the certificate would
also include the condition that the ivory
covered by the certificate may not be
sold or otherwise transferred in any
country other than the country in which
the exhibition is based and registered.
This restriction would also be included
as a prohibition in the 4(d) rule,
although exhibition items containing
ivory that are owned by persons who are
based in the United States could be sold
or offered for sale in interstate or foreign
commerce or delivered, received,
carried, transported, or shipped in
interstate or foreign commerce in the
course of a commercial activity if the
item qualified under the de minimis
exception and the exhibition was back
in the United States. Like musical
instrument certificates, traveling
exhibition certificates are used like
passports. Upon each import or export,
the original certificate is presented to
the appropriate border control officer,
who inspects the certificate, verifies that
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45169
the certificate corresponds to the item
presented for import, and validates the
certificate to document the history of
each cross-border movement. Similar to
the strict regulation of musical
instruments, these requirements would
limit use of the exception to items
consisting of or containing African
elephant ivory legally acquired prior to
February 26, 1976, and ensure that the
item would not be commercialized
while outside the country in which the
exhibition is based while traveling
under the authorization of the CITES
certificate. These requirements provide
adequate assurances that any import or
export of these items would not
contribute to either the illegal trade in
elephant ivory or the illegal killing of
elephants.
Items imported or exported as part of
an inheritance or a household move
under the final exception would need to
be for personal use only and
accompanied by a valid CITES preConvention certificate. To qualify for a
pre-Convention certificate, the importer
or exporter of an item containing
African elephant ivory would need to
present sufficient information to show
that the ivory was removed from the
wild prior to February 26, 1976. There
must also be sufficient information to
show that the ivory was harvested in
compliance with all applicable laws of
the range country and that any
subsequent import and export of the
ivory and the instrument containing the
ivory was legal under CITES and other
applicable laws. For any item imported
or exported as an inheritance, the
importer or exporter would also need to
show that the item was received through
an inheritance. For any item imported
or exported as part of a household
move, the importer or exporter would
need to show that they own the item,
that it was legally acquired, and that
they are moving it for personal use. Any
such items would need to be imported
or exported within 1 year of changing
residence from one country to another
and the shipment would need to contain
only ivory items purchased, inherited,
or otherwise acquired prior to the
change in residence. Finally, the type
and quantity of ivory items imported or
exported under this exception would
need to be appropriate for a household
move. Because any ivory imported or
exported under this exception would be
solely for personal use, any such ivory
could not subsequently be sold or
offered for sale in interstate or foreign
commerce or delivered, received,
carried, transported, or shipped in
interstate or foreign commerce in the
course of a commercial activity, even if
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it qualified under the de minimis
exception.
All of these requirements would help
to ensure that any imports or exports
under these proposed exceptions did
not contribute to past poaching and
smuggling, did not contribute to the
recent increase in illegal killing of
elephants and illegal trade of ivory, and
would be in compliance with AfECA
requirements. In addition, the
requirements that items under most of
the exceptions must be imported or
exported for personal or noncommercial
use only, the limits on sale or other
disposal of musical instruments and
exhibition items while the item is
traveling under the CITES certificate,
the requirement that inherited items
must be documented as acquired
through an inheritance and not
purchase, the requirement that
household move items are limited to the
number and type that would reasonably
be expected for a person’s move of their
household, the requirement that
household move items must be
imported or exported within 1 year of a
documented change of residence, and
the prohibition on commercialization of
inherited or household move items even
if they qualify under the de minimis
exception would minimize the chances
of these exceptions being used as a
means to commercialize ivory.
Because of the strict requirements that
must be met to be eligible for import or
export of any item under these three
exceptions, we are proposing that no
additional threatened species permit
would be required under 50 CFR 17.32.
The requirements to obtain the relevant
CITES document, the findings that must
be made before the CITES document can
be issued, and the requirement to
present the item along with all required
CITES and general wildlife import/
export documents to Federal officials
upon import or export would ensure
that each import or export is legal and
adequately monitored. Presentation of
the items and documents upon import
or export would also provide Federal
officials the opportunity to make sure
that all other requirements have been
met. Requiring individuals to obtain an
ESA threatened species permit in
addition to the required CITES
documents prior to import or export of
items under these limited exceptions
would be an unnecessary overlay of
documents on top of existing CITES
documentation that ensures that such
import or export is not contributing to
the illegal killing of elephants.
All of these exceptions are identical
or similar to the exceptions to the
AfECA import moratorium that were
provided as a matter of law enforcement
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discretion through Director’s Order No.
210, as amended on May 15, 2014. The
only substantive change is that the
Director’s Order contained an additional
standard that any musical instrument,
item in a traveling exhibition, item in a
household move, or inherited item
containing ivory could not be imported
if it had been transferred from one
person to another person for financial
gain or profit since February 25, 2014
(the date of the original Director’s
Order). We have determined that this
restriction is not needed because with
this proposed rule it would be a
violation of the ESA for any person to
sell or offer for sale ivory or sporthunted trophies in interstate or foreign
commerce or to deliver, receive, carry,
transport, or ship ivory or sport-hunted
trophies in interstate or foreign
commerce in the course of a commercial
activity except for certain manufactured
items that would qualify under the de
minimis exception. Therefore any U.S.
citizen or other person subject to the
jurisdiction of the United States who
commercialized an item containing
ivory or a sport-hunted trophy in
violation of these prohibitions would be
in violation of this rule regardless of
whether this additional restriction were
in place.
Under the current 4(d) rule, worked
ivory may be exported in accordance
with the requirements in 50 CFR parts
13 and 23, and raw ivory may not be
exported from the United States for
commercial purposes under any
circumstances. Under the AfECA, the
export of all raw ivory is prohibited. We
propose to revise the 4(d) rule to
prohibit export of raw ivory, consistent
with the AfECA prohibition, with the
exception of antiques. For the same
reasons discussed above, we also
propose to prohibit export of worked
ivory, other than antiques, except in the
same limited circumstances and for the
same limited purposes allowed for
import: By a government agency for law
enforcement purposes, for a genuine
scientific purpose that will contribute to
the conservation of the African
elephant, as part of a qualifying musical
instrument, as a qualifying item in a
traveling exhibition, or as a qualifying
item that is part of a household move or
inheritance.
In developing this proposed rule, we
have given very careful consideration to
the types of circumstances and purposes
for which we could allow exceptions to
the prohibitions on import and export of
African elephant ivory. However, we
seek information and comment
regarding the need for and advisability
of finalizing a rule that includes a
broader exception to those prohibitions
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for the noncommercial import or export
of worked ivory in circumstances that
are not covered by the exceptions for
musical instrument, traveling
exhibitions, household moves or
inheritances, or genuine scientific
purposes. In particular, we seek
information from individuals who may
wish to engage in noncommercial
import or export of worked African
elephant ivory that would be prohibited
by this proposed rule. We are also
interested in the potential impacts of
these prohibitions on segments of the
trade not covered by these exceptions.
Information regarding the illegal
killing of elephants and the alarming
growth in illegal trade in elephant ivory
shows that all appropriate actions are
needed to restrict the export of raw and
worked African elephant ivory where
that export is likely to contribute to
commercializing elephant ivory. It is
appropriate, however, to allow certain
limited exceptions to the export
prohibition where export either would
be beneficial to law enforcement or the
conservation of the species, or where
export of certain articles of worked
ivory meet strict criteria and are
regulated in such a manner that their
export would not contribute to the
illegal trade in ivory and pose no risk to
elephant populations. Export of worked
African elephant ivory would also be
available by threatened species permit
under 50 CFR 17.32, provided the
person met all of the requirements of
that section as well as the general
permitting requirements under 50 CFR
part 13.
As noted previously, Section 4(d) of
the ESA does not apply to items that
qualify as antiques. While the
prohibitions on import and export of
ivory proposed here thus do not apply
to ESA antiques, the prohibitions on
import and export of ivory under AfECA
would still apply, regardless of the age
of the item. In addition, certain worked
ivory items that qualify under the ESA
section 9(b)(1) ‘‘pre-Act’’ exemption (see
below) could also be exported (see
below). No ESA permit would be
required for any worked ivory that
qualified under any of these provisions,
but it would still need to be
accompanied by any required CITES
document and meet all requirements
under the Service’s general wildlife
import/export regulations.
Qualifying Pre-Act Specimens
The ESA provides an exemption in
section 9(b)(1) from any prohibitions
contained in a 4(d) rule for specimens
of threatened species ‘‘held in captivity
or in a controlled environment’’ on the
date the ESA entered into effect
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(December 28, 1973) or the date the final
rule listing the species under the ESA
was published in the Federal Register
(which for the African elephant was
May 12, 1978), whichever is later. The
exemption applies only if ‘‘such holding
and any subsequent holding or use of
the fish or wildlife was not in the course
of a commercial activity.’’ As noted
above in Interstate and foreign
commerce, activities with threatened
species do not qualify as ‘‘commercial
activity’’ unless the activity involves the
transfer of the specimen from one
person to another person in the pursuit
of gain or profit. Therefore, the
exemption would apply unless
commercial activity with an African
elephant specimen (including ivory) on
or after May 12, 1978, involved the
transfer of the specimen from one
person to another person in pursuit of
gain or profit. (See the discussion on
activities that occur ‘‘in the course of a
commercial activity’’ under Interstate
and foreign commerce, above.)
Persons wishing to engage in
activities that otherwise would be
prohibited under this 4(d) rule would
have the burden of showing that their
activities qualify for this ‘‘pre-Act’’
exemption. The statutory exemption
would not change with revision of the
4(d) rule, but it is also important to
remember that nothing in the ESA
provides that an exemption under that
law modifies or supersedes provisions
in other applicable statutes such as the
AfECA. (See Antique specimens, below,
for a full discussion on the relationship
between ESA exemptions and AfECA
restrictions.) Therefore, activities
prohibited under the AfECA remain
prohibited, even if the ESA ‘‘pre-Act’’
exemption applies.
The pre-Act exemption would apply
to the following examples if the activity
met all requirements of the ESA: The
prohibition against take for qualifying
live elephants that were held in
captivity on May 12, 1978; the
prohibition on the export of worked
ivory that was held in a controlled
environment on May 12, 1978; and the
requirement to get a threatened species
permit for the export of worked ivory to
be used for genuine scientific purposes
for ivory that was held in a controlled
environment on May 12, 1978, provided
that in each case the holding and any
subsequent holding or use of the live
animal or specimen since 1978 did not
include transfer from one person to
another person in the pursuit of gain or
profit.
In addition, if the holding as of May
12, 1978, or any subsequent holding or
use included a transfer from one person
to another person in the pursuit of gain
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or profit, the exemption would still be
available if the activities qualified as
exhibition of commodities by a museum
or similar cultural or historical
organization. All import and export
requirements under CITES and the
general wildlife import/export
regulations at 50 CFR part 14 would still
need to be met. Section 9(b)(1) of the
ESA provides an exemption from ESA
threatened-species prohibitions only,
not from requirements that arise under
CITES and the general import/export
requirements under the ESA.
Antique Specimens
Section 10(h) of the ESA provides an
exemption for antique articles that are:
(a) Not less than 100 years of age; (b)
composed in whole or in part of any
endangered species or threatened
species; (c) have not been repaired or
modified with any part of any such
species on or after the date of the
enactment of the ESA; and (d) are
entered at a port designated for ESA
antiques. Any person who is conducting
activities with a qualifying ESA antique
is exempt from, among other things, any
restrictions provided in a 4(d) rule for
that species, including restrictions on
import; export; sale or offer for sale in
interstate or foreign commerce; and
delivery, receipt, carrying, transport, or
shipment in interstate or foreign
commerce and in the course of a
commercial activity. The taking
prohibition would not apply to dead
specimens such as antiques. Anyone
wishing to engage in activities under
this antiques exception must be able to
demonstrate that the item meets the
requirements of the ESA.
Items that qualify as antiques under
the ESA are not subject to the
prohibitions in the proposed 4(d) rule.
The ESA antiques exemption does not
apply, however, to prohibitions
imposed under the AfECA on the import
of raw and worked African elephant
ivory into the United States and the
export of raw ivory from the United
States. As with the ESA section 9(b)(1)
‘‘pre-Act’’ exemption, nothing in the
ESA provides that an exemption under
that law modifies or supersedes
provisions in other applicable statutes
such as the AfECA. The provisions in
the AfECA regarding the import and
certain export of African elephant ivory
were specifically enacted to address
conservation concerns with African
elephants and were enacted later in time
than the earlier, more general ESA
exemption applicable to all endangered
and threatened species, so the later,
more specific restrictions on import and
export in the AfECA take precedence
over the earlier, more general exemption
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45171
in the ESA. As noted previously, section
4241 of the AfECA (16 U.S.C. 4241)
specifies that the authority of the
Service under the AfECA is in addition
to and does not affect the authority of
the Service under the ESA.
A qualifying ESA antique containing
African elephant ivory could thus only
be imported if it also qualified for one
of the exceptions from enforcement of
the AfECA moratorium created by
Director’s Order No. 210: antique raw or
worked ivory for law enforcement
purposes, antique raw or worked ivory
for scientific purposes, antique worked
ivory that is part of a musical
instrument, antique worked ivory in a
traveling exhibition, antique worked
ivory that is part of a household move,
or antique worked ivory that was
inherited. As noted previously, we
believe these exceptions are consistent
with Congressional intent in enacting
the AfECA, which focused on the harm
caused by poaching to supply the illegal
trade in ivory. An antique sport-hunted
trophy could not qualify for import
because it would not be able to meet the
requirements under the AfECA that it
was taken from an elephant range
country with an elephant quota declared
to the CITES Secretariat (which did not
exist 100 years ago). Because the
prohibition on the export of all raw
ivory is under the AfECA, the ESA
antique exemption also could not be
used to export antique raw ivory.
For qualifying ESA antiques
containing African elephant ivory that
could be imported as described above
and antiques containing African
elephant ivory that meet all of the
requirements under section 10(h) of the
ESA and were imported before the
AfECA import moratorium was put in
place in 1989, whether those antiques
could be commercialized in interstate or
foreign commerce would depend on
whether restrictions are based on the
ESA or CITES. Any restrictions that are
based on CITES or laws other than the
ESA would remain in place.
As discussed earlier, one of the
requirements to qualify for the ESA
antiques exemption is that the antique
must have been imported into the
United States through a port designated
for the import of ESA antiques. These
ports were first designated on
September 22, 1982. Therefore, under
the terms of the ESA, no item that
contains parts of any endangered or
threatened species (including African
elephant ivory) can qualify under the
ESA antiques exemption unless it was
imported into the United States through
one of the designated ESA antiques
ports on some date after September 22,
1982.
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On February 25, 2014 (as amended on
May 15, 2014), the Service issued
Director’s Order No. 210, which, among
other things, provides direction to
Service employees on implementation
and enforcement of the ESA antiques
exemption. Appendix A to Director’s
Order No. 210 reiterates the four
statutory requirements for an item to
qualify as an ESA antique and states
that, as a matter of law enforcement
discretion, the prohibitions under the
ESA would not be enforced for antiques
that meet the requirements of being at
least 100 years old; being composed of
an endangered or threatened species;
and not having been repaired or
modified with any part of an
endangered or threatened species since
December 28, 1973, but were imported
prior to September 22, 1982, or were
created in the United States and never
imported and therefore do not meet the
requirement of having been imported at
a designated ESA antiques port. This
Director’s Order remains in place. The
Service will apply its law enforcement
discretion regarding otherwise
qualifying antiques that were imported
prior to September 22, 1982, or were
produced in the United States and never
imported, allowing them to be exported,
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, provided all other legal
requirements are met. Appendix A of
the Director’s Order also contains
guidance on documentation needed and
other information for conducting
activities with ESA antiques. Director’s
Order No. 210, as amended on May 15,
2014, including Appendix A can be
found at https://www.fws.gov/policy/
do210.html.
As described in Director’s Order No.
210, the person claiming the benefit of
the ESA antiques exemption must
provide evidence to demonstrate that
the item qualifies as an ESA antique.
This evidence may include a qualified
appraisal, documents that provide
detailed provenance, and/or scientific
testing. Since issuance of the Director’s
Order, we have heard from some people
who are concerned about what the
Service might require in terms of
documentation or authentication of
their antique items. We want to be clear
that establishing provenance does not
necessarily require destructive testing;
there may be other ways to establish
provenance, such as a qualified
appraisal or another method that
documents the age by establishing the
origin of the item. We have listed
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scientific testing (in the Appendix to
Director’s Order No. 210) as an option
for people who may want to make use
of it in certain circumstance for certain
items. However, this is only one option,
in a suite of possible options. The
provenance may be determined through
a detailed history of the item, including
but not limited to family photos,
ethnographic fieldwork, or other
information that authenticates the item
and assigns the work to a known period
of time or, where possible, to a known
artist. Scientific testing could be
necessary if there is no other way to
establish the provenance of an item.
In addition, we want to be clear that
we do not require scientific testing of
the ivory components in a manufactured
antique item. Where a person can
demonstrate that an item, for example a
table with ivory inlays, is older than 100
years, and that the table has not been
repaired or modified with ivory (or any
other threatened or endangered species)
since December 28, 1973, the Service
considers the age criteria in Section
10(h) to be met. We would not require
testing of the ivory itself to determine its
age. Of course, to qualify for the ESA
antiques exemption a person must
demonstrate that all four of the criteria
in Section 10(h) of the ESA have been
met.
We also want to clarify that these
documentation requirements are not
new. The ESA itself places the burden
of proof on the person claiming the
benefit of the exemption (Sec. 10(g)) and
the Service has required documentation
for antique items since the 1970s. This
documentation requirement is also not
unique to African elephant ivory; it
applies to specimens of any species
listed under the ESA when a person is
claiming the benefit of this exemption
from prohibitions. Over the years, the
Service has provided information
regarding acceptable documentation for
establishing age and provenance; most
recently, in the Appendix to Director’s
Order No. 210. Our CITES regulations at
50 CFR 23.34 also provide information
on the kinds of records a person can use
to show the origin of a specimen. We
seek comment from the public on
whether additional guidance is needed
in the regulatory code regarding
implementation of the ESA antiques
exemption.
Determination
Section 4(d) of the ESA states that the
‘‘Secretary shall issue such regulations
as [s]he deems necessary and advisable
to provide for the conservation’’ of
species listed as threatened.
Additionally, section 4(d) of the ESA
provides that the Secretary ‘‘may by
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regulation prohibit with respect to any
threatened species any act prohibited
under section 9(a)(1).’’ Thus regulations
promulgated under section 4(d) of the
ESA provide the Secretary, as delegated
to the Service, discretion to select
appropriate provisions for threatened
species, including prohibitions,
exceptions, and required authorizations.
Some of the ESA prohibitions and
exceptions from section 9(a)(1) of the
ESA and from 50 CFR 17.31 and 17.32
may be appropriate for the species and
be incorporated into a 4(d) rule.
However, the 4(d) rule may also include
other provisions that take into account
other applicable laws and are tailored to
the specific conservation needs of the
listed species, and therefore may be
more or less restrictive than the general
provisions for threatened species. As
noted by Congress 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,’’ as long
as the measures will ‘‘serve to conserve,
protect, or restore the species concerned
in accordance with the purposes of the
[ESA]’’ (H.R. Rep. No. 412, 93rd Cong.,
1st Sess. 1973).
This proposed rule includes
appropriate provisions that are
necessary and advisable to provide for
the conservation of the African
elephant, while also including
appropriate prohibitions from Section
9(a)(1) of the ESA. The primary threat to
the African elephant is poaching of
elephants for their tusks and the
associated illegal trade in both raw and
worked ivory. To restrict this illegal
trade, the proposed provisions under
this rule prohibit the import of African
elephant ivory, with certain narrow
exceptions, restrict the import of sporthunted trophies, and prohibit the export
of raw ivory. The rule provides two
exceptions from the prohibition on
import of ivory that would directly
benefit law enforcement efforts that
involve African elephants and science
that would contribute to the
conservation of the species. The rule
provides three additional exceptions,
which apply to the noncommercial
import or export of worked ivory only,
for qualifying musical instruments,
items in a traveling exhibition, inherited
items, and items that are part of a
household move. Any worked ivory
imported or exported under these
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exceptions would need to meet strict
criteria under both CITES and this rule,
resulting in restrictions that safeguard
against import or export of ivory that
could contribute to the illegal trade in
ivory or pose a risk to elephant
populations. The import and export of
ivory is also subject to applicable
restrictions under the AfECA, except to
the extent allowed under Director’s
Order No. 210, as amended on May 15,
2014. Our information indicates that
these strict controls on the import and
export of African elephant ivory will
help to ensure that U.S. participation in
the ivory trade will not contribute to the
illegal killing of elephants.
For the same reasons that the import
and export of raw and worked ivory
need to be carefully regulated, the
import and export of African elephant
sport-hunted trophies must be regulated
in a manner that would ensure that the
import and export does not contribute to
the illegal trade of ivory. The proposed
rule would require that the import of all
sport-hunted trophies, regardless of the
CITES status of the source population,
be authorized through the issuance of a
threatened species permit under 50 CFR
17.32. Authorizing importation through
threatened species enhancement
permits would allow us to more
carefully evaluate trophy imports in
accordance with legal requirements and
the conservation needs of the species.
The limitation of two trophies per
hunter per year would ensure that the
importation of African elephant trophies
is actually the result of personal,
noncommercial sport hunting and
would prevent the importation of
commercial quantities of ivory.
Perhaps the biggest change from the
current 4(d) rule would be new
restrictions on the commercialization of
ivory in interstate and foreign
commerce. The proposed rule would
prohibit the sale or offer for sale of ivory
and sport-hunted trophies in interstate
or foreign commerce and the delivery,
receipt, carrying, transport, or shipment
of ivory and sport-hunted trophies in
interstate or foreign commerce in the
course of a commercial activity.
Exceptions would be available for
qualifying antiques and for certain items
manufactured before the date of the
final rule for this rulemaking that
contain less than 200 grams of ivory and
meet other conditions, while certain
commercial activities could also be
authorized through a threatened species
permit under 50 CFR 17.32. However,
the de minimis exception and
threatened species permits would not be
available for sport-hunted trophies and
ivory items that were imported as part
of a household move or inheritance. We
have determined that items meeting the
de minimis exception, including the
requirements that the ivory be a fixed
component of a larger manufactured
item, that the ivory is not raw, that the
ivory is not the primary source of value
of the item, that the total weight of the
ivory is less than 200 grams, and that
the manufactured item is not made
wholly or primarily of ivory, would
minimize the possibility of the ivory
contributing to either the global or U.S.
markets in illegal ivory.
The proposed rule, however, would
continue to allow certain activities that
pose no risk to African elephants. Live
elephants and elephant parts or
products other than ivory and sporthunted trophies could continue to 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, provided all other requirements
under CITES and the Service’s general
import/export regulations were met.
CITES requirements, including findings
that must be made before documents
can be issued, would continue to ensure
45173
that all import and export of live
animals and parts or products other
than ivory and sport-hunted trophies
remain legal and non-detrimental to the
survival of the species. There is no
information that indicates that import,
export, or commercialization of live
elephants or non-ivory parts and
products as currently regulated under
CITES has any negative effect on
African elephants or is contributing in
any way to the current crisis involving
the killing of elephants for their ivory.
The new restriction on the taking of live
elephants held in captivity within the
United States or during transport would
help to ensure that animals in captivity
receive an appropriate standard of care.
In addition to this proposed rule
being necessary and advisable to
provide for the conservation of the
species and including appropriate
prohibitions from section 9(a)(1) of the
ESA, it also is consistent with other
efforts to improve elephant
conservation. With this rule, the United
States would ensure that we have in
place comprehensive internal regulatory
and enforcement measures to regulate
domestic trade in raw and worked ivory,
as called for at the 16th meeting of the
Conference of the Parties to CITES in
March 2013 (see Resolution Conf. 10.10
(Rev. CoP16)). More broadly, the
proposed rule would respond to the
President’s Executive Order of July 1,
2013, calling for all Federal agencies to
take action to combat wildlife trafficking
in all wildlife and to reduce demand for
illegally traded wildlife, both at home
and abroad. All of the proposed
revisions to the African elephant 4(d)
rule would allow us to better regulate
the U.S. domestic market and U.S.
participation in the global market for
African elephant ivory, which we
believe will lead to a reduction of the
illegal killing of elephants for their
ivory.
TABLE 1—HOW WOULD PROPOSED CHANGES TO THE AFRICAN ELEPHANT 4(d) RULE AFFECT TRADE IN AFRICAN
ELEPHANT IVORY?
[This table is only for guidance on proposed revisions to the existing Endangered Species Act 4(d) rule for the African elephant. Please see the
proposed rule text for details. All imports and exports must be accompanied by appropriate CITES documents and meet other FWS import/
export requirements]
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What activities are currently
allowed/prohibited?
Import ...................................
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What are the proposed changes?
In 2014, the Service revised Director’s Order No. 210
(effective May 15, 2014) and U.S. CITES implementing regulations [50 CFR part 23] (effective June
26, 2014).
Both of these actions created new rules for trade in elephant ivory
Commercial
What’s allowed:
• No commercial imports allowed
This column describes the contents of the proposed
rule in general terms. Please refer to the proposed
rule text for details. These provisions will not go into
effect until we have considered input received during
the public comment period and published a final rule
in the Federal Register.
Commercial
The proposed rule does not include any changes for
commercial imports.
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TABLE 1—HOW WOULD PROPOSED CHANGES TO THE AFRICAN ELEPHANT 4(d) RULE AFFECT TRADE IN AFRICAN
ELEPHANT IVORY?—Continued
[This table is only for guidance on proposed revisions to the existing Endangered Species Act 4(d) rule for the African elephant. Please see the
proposed rule text for details. All imports and exports must be accompanied by appropriate CITES documents and meet other FWS import/
export requirements]
What activities are currently
allowed/prohibited?
Export ...................................
What are the proposed changes?
Noncommercial
What’s allowed:
• Sport-hunted trophies (no limit)
• Law enforcement and bona fide scientific specimens
• Worked elephant ivory that was legally acquired and
removed from the wild prior to February 26, 1976
and has not been sold since February 25, 2014 and
is either:
Æ Part of a household move or inheritance (see Director’s Order No. 210 for details);
Æ Part of a musical instrument (see Director’s
Order No. 210 for details); or
Æ Part of a traveling exhibition (see Director’s
Order No. 210 for details).
What’s prohibited:
• Worked ivory that does not meet the conditions described above.
• Raw ivory (except for sport-hunted trophies).
Commercial .....................................................................
What’s allowed:
• CITES pre-Convention worked ivory, including antiques.
What’s prohibited:
• Raw ivory
Noncommercial ...............................................................
What’s allowed:
• Worked ivory
What’s prohibited:
• Raw ivory
Noncommercial
The proposed rule includes the following changes for
noncommercial imports:
• Limits sport-hunted trophies to two per hunter per
year.
• Removes the requirement that worked elephant ivory
has not been sold since February 25, 2014. All other
requirements for worked elephant ivory (listed in the
previous column) must be met.
There are no restrictions on foreign commerce .............
Sales across state lines †
(interstate commerce).
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Foreign commerce ...............
What’s allowed: ...............................................................
• Ivory lawfully imported prior to the date the African
elephant was listed in CITES Appendix I (January 18,
1990)—[seller must demonstrate].
• Ivory imported under a CITES pre-Convention certificate—[seller must demonstrate].
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Commercial
The proposed rule would further restrict commercial exports to only those items that meet the criteria of the
ESA antiques exemption.*
Raw ivory remains prohibited regardless of age.
Noncommercial
The proposed rule would further restrict noncommercial
exports to the following categories:
• Only those items that meet the criteria of the ESA
antiques exemption.*
• Worked elephant ivory that was legally acquired and
removed from the wild prior to February 26, 1976,
and is either:
Æ Part of a household move or inheritance;
Æ Part of a musical instrument; or
Æ Part of a traveling exhibition.
• Worked ivory that qualifies as pre-Act
• Law enforcement and bona fide scientific specimens.
Raw ivory remains prohibited regardless of age.
The proposed rule includes the following changes for
foreign commerce:
• Restricts foreign commerce to:
Æ items that meet the criteria of the ESA antiques
exemption,* and
Æ certain manufactured items that contain a small
(de minimis) amount of ivory.
• Prohibits foreign commerce in:
Æ sport-hunted trophies, and
Æ ivory imported/exported as part of a household
move or inheritance.
The proposed rule includes the following changes for
interstate commerce:
• Further restricts interstate commerce to only:
Æ items that meet the criteria of the ESA antiques
exemption,* and
Æ certain manufactured items that contain a small
(de minimis) amount of ivory.**
• Prohibits interstate commerce in:
Æ ivory imported under the exceptions for household move or inheritance, or for law enforcement
or genuine scientific purposes, and
Æ sport-hunted trophies.
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TABLE 1—HOW WOULD PROPOSED CHANGES TO THE AFRICAN ELEPHANT 4(d) RULE AFFECT TRADE IN AFRICAN
ELEPHANT IVORY?—Continued
[This table is only for guidance on proposed revisions to the existing Endangered Species Act 4(d) rule for the African elephant. Please see the
proposed rule text for details. All imports and exports must be accompanied by appropriate CITES documents and meet other FWS import/
export requirements]
What activities are currently
allowed/prohibited?
Sales within a state (intrastate commerce).
Noncommercial movement †
within the United States.
Personal possession ............
What are the proposed changes?
What’s allowed:
• Ivory lawfully imported prior to the date the African
elephant was listed in CITES Appendix I (January 18,
1990)—[seller must demonstrate].
• Ivory imported under a CITES pre-Convention certificate—[seller must demonstrate].
Noncommercial use, including interstate and intrastate
movement within the United States, of legally acquired ivory is allowed.
Possession and noncommercial use of legally acquired
ivory is allowed.
The proposed rule does not include any changes for
intrastate commerce.
The proposed rule does not include any changes for
noncommercial movement within the United States.
The proposed rule does not include any changes for
personal possession.
† See preamble discussion in the section titled Interstate and foreign commerce.
* To qualify for the ESA antique exemption an item must meet all of the following criteria [seller/importer/exporter must demonstrate]:
A. It is 100 years or older.
B. It is composed in whole or in part of an ESA-listed species;
C. It has not been repaired or modified with any such species after December 27, 1973; and
D. It is being or was imported through an endangered species ‘‘antique port.’’
Under Director’s Order No. 210, as a matter of enforcement discretion, items imported prior to September 22, 1982, and items created in the
United States and never imported must comply with elements A, B, and C above, but not element D.
** To qualify for the de minimis exception, manufactured items must meet all of the following criteria:
(i) If the item is located within the United States, the ivory was imported into the United States prior to January 18, 1990, or was imported into
the United States under a Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) pre-Convention certificate
with no limitation on its commercial use;
(ii) If the item is located outside the United States, the ivory was removed from the wild prior to February 26, 1976;
(iii) The ivory is a fixed component or components of a larger manufactured item and is not in its current form the primary source of the value
of the item;
(iv) The ivory is not raw;
(v) The manufactured item is not made wholly or primarily of ivory;
(vi) The total weight of the ivory component or components is less than 200 grams; and
(vii) The item was manufactured before the effective date of the final rule].
For a discussion of the de minimis exception see the section of the preamble titled Interstate and foreign commerce; for details of the de minimis exception see paragraph (e)(3) in the rule text at the end of this document.
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Required Determinations
Regulatory Planning and Review:
Executive Order 12866 provides that the
Office of Information and Regulatory
Affairs in the Office of Management and
Budget will review all significant rules.
The Office of Information and
Regulatory Affairs has determined that
this rule is significant because it may
raise novel legal or policy issues.
Executive Order 13563 reaffirms the
principles of Executive Order 12866
while calling for improvements in the
Nation’s regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
Executive Order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
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this rule in a manner consistent with
these requirements.
A brief assessment to identify the
economic costs and benefits associated
with this proposed rule follows. The
Service has prepared an economic
analysis, as part of our review under the
National Environmental Policy Act
(NEPA), which we will make available
for review and comment (see the
paragraph in this Required
Determinations section on the National
Environmental Policy Act). The
proposed rule would revise the 4(d)
rule, which regulates trade of African
elephants (Loxodonta africana),
including African elephant parts and
products. We are proposing to revise the
4(d) rule to more strictly control U.S.
trade in African elephant ivory.
Revision of the 4(d) rule as proposed
would mean that African elephants are
subject to some of the standard
provisions for species classified as
threatened under the ESA. This means
that the taking of live elephants and
(with certain exceptions) import, export,
and commercial activities in interstate
or foreign commerce of African elephant
parts and products containing ivory
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would generally be prohibited without a
permit issued under 50 CFR 17.32 for
‘‘Scientific purposes, or the
enhancement of propagation or survival,
or economic hardship, or zoological
exhibition, or educational purposes, or
incidental taking, or special purposes
consistent with the purposes of the
[ESA].’’ There are specific exceptions
for certain activities with specimens
containing de minimis quantities of
ivory; ivory items that meet certain
requirements for musical instruments,
traveling exhibitions, inherited items,
and items that are part of a household
move; ivory imported or exported for
scientific purposes or law enforcement;
certain live elephants; and ivory items
that qualify as ‘‘pre-Act’’ or as antiques
under the ESA.
This rule would regulate only African
elephants and African elephant ivory.
Asian elephants and parts or products
from Asian elephants, including ivory,
are regulated separately under the ESA.
Ivory from other species such as walrus
is also regulated separately under the
Marine Mammal Protection Act (16
U.S.C. 1361 et seq.). Ivory from extinct
species such as mammoths is not
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regulated under statutes implemented
by the Service.
Impacted markets include those
involving U.S. citizens or other persons
subject to the jurisdiction of the United
States that buy, sell, or otherwise
commercialize African elephant ivory
products across State lines and those
that buy, sell, or otherwise
commercialize such specimens in
international trade. Examples of
products in trade containing African
elephant ivory include cue sticks, pool
balls, knife handles, gun grips, furniture
inlay, jewelry, artwork, and musical
instrument parts.
The market for African elephant
products, including ivory, is not large
enough to have major data collections or
reporting requirements, which results in
a limited amount of available data for
economic analysis. Some import and
export data are available from the
Service’s Office of Law Enforcement and
Division of Management Authority, and
from reports produced by other
organizations. On the whole, the
available data provide a general
overview of the African elephant ivory
market. Using this information, we can
make reasonable assumptions to
approximate the potential economic
impact of revision of the 4(d) rule for
the African elephant. With this
proposed rule, we solicit public input
on impacts to sales, percentage of
revenue impacted, and the number of
businesses affected, particularly with
regard to interstate and foreign
commerce, for which we have the least
amount of information, to help quantify
these costs and benefits. Please see the
Public Comments section at the end of
SUPPLEMENTARY INFORMATION for further
information about submitting
comments.
Imports. There has been a moratorium
on the import of African elephant ivory
other than sport-hunted trophies,
established under the AfECA and in
place since 1989. In recent years, the
Service has allowed, as a matter of law
enforcement discretion, the import of
certain antique African elephant ivory.
Director’s Order No. 210, issued in
February 2014, clarified that we will no
longer allow any commercial import of
African elephant ivory, regardless of its
age. We are proposing to reflect this
provision of Director’s Order No. 210 in
the 4(d) rule (except for antiques, which
are exempt from this 4(d) rule, but
remain subject to the AfECA
moratorium). Import of live African
elephants and non-ivory African
elephant parts and products would
continue to be allowed under the
proposed revisions, provided the
requirements at 50 CFR parts 13, 14, and
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23 are met. Import of African elephant
sport-hunted trophies would be limited
to two trophies per hunter per year. This
may impact about seven hunters,
representing about 3 percent to 4
percent of hunters, annually.
Exports. Under the current 4(d) rule,
raw ivory may not be exported from the
United States for commercial purposes
under any circumstances. In addition,
export of raw ivory from the United
States is prohibited under the AfECA.
Therefore, the revisions to the 4(d) rule
would have no impact on exports of raw
ivory. Revision of the 4(d) rule as
proposed would mean that export of
worked African elephant ivory would be
prohibited without an ESA permit
issued under 50 CFR 17.32, except for
specimens that qualify as ‘‘pre-Act’’ or
as ESA antiques and certain musical
instruments; items in a traveling
exhibition; items that are part of a
household move or inheritance; items
exported for scientific purposes; and
items exported for law enforcement
purposes that meet specific conditions
and, therefore, may be exported without
an ESA permit. Export of live African
elephants and non-ivory products made
from African elephants would continue
to be allowed provided the requirements
at 50 CFR parts 13, 14, and 23 are met.
From 2007 to 2011, the total declared
value of worked African elephant ivory
exported from the United States varied
widely from $32.1 million to $175.7
million. The declared value of items
containing African elephant ivory that
were less than 100 years old (and,
therefore, could not qualify as ESA
antiques) ranged from $607,000 to $3.7
million annually during the same time
period. As this rule would no longer
permit the commercial export of nonantique ivory, we expect based on the
information currently available that, on
average, commercial export of worked
ivory would decrease by about 2 percent
annually.
Domestic and Foreign Commerce. The
proposed rule would prohibit certain
commercial activities such as sale in
interstate or foreign commerce of
African elephant ivory and delivery,
receipt, carrying, transport, or shipment
of ivory in interstate or foreign
commerce in the course of a commercial
activity (except for qualifying ESA
antiques and certain manufactured
items containing de minimis amounts of
ivory) without an ESA permit issued
under 50 CFR 17.32. Otherwise,
commercial activities in interstate and
foreign commerce with live African
elephants and African elephant parts
and products other than ivory would
continue to be allowed under the
proposed revisions to the 4(d) rule.
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While revisions to the 4(d) rule would
generally result in prohibitions on sale
or offer for sale in interstate or foreign
commerce as well as prohibitions on
delivery, receipt, carrying, transport, or
shipment in interstate or foreign
commerce in the course of a commercial
activity of both raw and worked African
elephant ivory, it would not have an
impact on intrastate commerce.
Businesses would not be prohibited by
the 4(d) rule from selling raw or worked
ivory within the State in which they are
located. (There are, however,
restrictions under our CITES regulations
at 50 CFR 23.55 for intrastate sale of
elephant ivory.) As noted earlier,
available data provide only a general
overview of the African elephant ivory
market. Assuming that the domestic
market is similar to the export market,
then non-antique worked ivory
domestic sales would also decrease
about 2 percent annually under the
proposed rule. We request information
from the public about the potential
impact to the domestic market. Because
we are proposing to allow domestic and
foreign commerce commercial activities
with certain items containing de
minimis amounts of ivory, and many of
these items would be precluded from
export, it is possible that an even
smaller percentage of the domestic
market would be impacted compared to
the export market. Certain commercial
activities such as sale in interstate or
foreign commerce with raw ivory and
non-antique worked ivory, with the
exception of those items containing de
minimis amounts of worked ivory
mentioned above, would no longer be
permitted.
Revising the 4(d) rule for African
elephant, as proposed here, would
improve domestic regulation of the U.S.
market as well as foreign markets where
commercial activities involving
elephant ivory are conducted by U.S.
citizens and facilitate enforcement
efforts within the United States. We are
proposing to take this action to increase
protection for African elephants in
response to the alarming rise in
poaching of African elephants, which is
fueling the rapidly expanding illegal
trade in ivory. As noted in the preamble
to this proposed rule, the United States
continues to play a role as a destination
and transit country for illegally traded
elephant ivory. Increased control of the
U.S. domestic market and foreign
markets where commercial activities
involving elephant ivory are conducted
by U.S. citizens would benefit the
conservation of the African elephant.
Regulatory Flexibility Act: Under the
Regulatory Flexibility Act (as amended
by the Small Business Regulatory
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Enforcement Fairness Act (SBREFA) of
1996), whenever a Federal agency is
required to publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
effect of the rule on small entities (i.e.,
small businesses, small organizations,
and small government jurisdictions) (5
U.S.C. 601 et seq.). However, no
regulatory flexibility analysis is required
if the head of an agency certifies that the
rule would not have a significant
economic impact on a substantial
number of small entities. Thus, for a
regulatory flexibility analysis to be
required, impacts must exceed a
threshold for ‘‘significant impact’’ and a
threshold for a ‘‘substantial number of
small entities.’’ See 5 U.S.C. 605(b).
SBREFA amended the Regulatory
Flexibility Act to require Federal
agencies to provide a statement of the
factual basis for certifying that a rule
would not have a significant economic
impact on a substantial number of small
entities.
The U.S. Small Business
Administration (SBA) defines a small
business as one with annual revenue or
employment that meets or is below an
established size standard. To assess the
effects of the rule on small entities, we
focus on businesses that buy or sell
elephant ivory. Businesses produce a
variety of products from elephant ivory
including cue sticks, pool balls, knife
handles, gun grips, furniture inlay,
jewelry, and instrument parts.
Depending on the type of product
produced, these businesses could be
included in a number of different
industries, including (1) Musical
Instrument Manufacturing (North
American Industry Classification
System (NAICS) 339992), where small
businesses have less than $10.0 million
revenue; (2) Sporting and Recreational
Goods and Supplies Merchant
Wholesalers (NAICS 423910), where
small businesses have fewer than 100
employees; (3) All Other Miscellaneous
Wood Product Manufacturing (NAICS
321999), where small businesses have
fewer than 500 employees; (4) Metal
45177
Kitchen Cookware, Utensil, Cutlery, and
Flatware (except Precious)
Manufacturing (NAICS 332215), where
small businesses have fewer than 500
employees; (5) Jewelry and Silverware
Manufacturing, (NAICS 339910), where
small businesses have fewer than 500
employees; (6) Used Merchandise Stores
(NAICS 453310), where small
businesses have less than $7.5 million
in revenue; and (7) Art Dealers (NAICS
453920), where small businesses have
less than $7.5 million in revenue. Table
2 describes the number of businesses
within each industry and the estimated
percentage of small businesses. The U.S.
Economic Census does not capture the
detail necessary to determine the
number of small businesses that are
engaged in commerce with African
elephant ivory products within these
industries. Based on the distribution of
small businesses with these industries
as shown in Table 2, we expect that the
majority of the entities involved with
trade in African elephant ivory would
be considered small as defined by the
SBA.
TABLE 2—DISTRIBUTION OF BUSINESSES WITHIN AFFECTED INDUSTRIES
NAICS Code
339992
423910
321999
332215
Number of
businesses
Description
.............................................
.............................................
.............................................
.............................................
339910 .............................................
453310 .............................................
453920 .............................................
Musical instrument manufacturing ............................................................
Sporting and recreational goods and supplies merchant wholesalers .....
All other miscellaneous wood product manufacturing ..............................
Metal kitchen cookware, utensil, cutlery, and flatware (except precious)
manufacturing.
Jewelry and silverware manufacturing ......................................................
Used merchandise stores .........................................................................
Art dealers .................................................................................................
Percentage
of small
businesses
597
5,953
1,763
188
73
97
100
99
2,119
19,793
4,937
100
74
95
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Source: U.S. Census Bureau, 2012 County Business Patterns.
The impact on individual businesses
is dependent on the percentage of
interstate and export sales that involve
non-antique African elephant ivory that
would not fall under the de minimis
exception. That is, the impact depends
on where businesses are located, where
their customers are located, and the
kinds of items containing ivory that they
sell. Information on business profiles to
determine the percent of revenues
affected by the rule is currently
unavailable. Overall, we estimate that
worked ivory exports would decrease
about $2.1 million annually, which
represents about 2 percent of the total
declared value of worked ivory exported
from 2007 to 2011. We also expect that
domestic sales would decrease by about
2 percent annually. Because we are
proposing to allow domestic
commercial activities with certain items
containing de minimis amounts of ivory,
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and many of these items would be
precluded from export, it is possible
that an even smaller percentage of the
domestic market would be impacted
compared to the export market.
Based on the available information,
we do not expect these changes to have
a substantial impact on small entities
within the five affected industries listed
above. We, therefore, certify that this
proposed rule would not have a
significant economic effect on a
substantial number of small entities as
defined under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). A Regulatory
Flexibility Analysis is not required.
Accordingly, a Small Entity Compliance
Guide is not required.
This proposed rule would create no
substantial fee or paperwork changes in
the permitting process. The regulatory
changes would require issuance of ESA
permits for import of sport-hunted
African elephant trophies. We estimate
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that we would issue 300 ESA permits
per year for these sport-hunted trophies,
with a fee of $100 per permit. These
changes are not major in scope and
would create only a modest financial or
paperwork burden on the affected
members of the general public. The
authority to regulate activities involving
ESA-listed species already exists under
the ESA and is carried out through
regulations contained in 50 CFR part 17.
Small Business Regulatory
Enforcement Fairness Act: This
proposed rule is not a major rule under
5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
This rule:
a. Would not have an annual effect on
the economy of $100 million or more.
This proposed rule revises the 4(d) rule
for African elephant, which makes the
African elephant subject to the same of
the provisions applied to other
threatened species not covered by a 4(d)
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rule, with certain exceptions. This
proposed rule would not have a
negative effect on this part of the
economy. It would affect all importers,
exporters, re-exporters, and domestic
and certain traders in foreign commerce
of African elephant ivory equally, and
the impacts would be evenly spread
among all businesses, whether large or
small. There is not a disproportionate
impact for small or large businesses.
b. Would not cause a major increase
in costs or prices for consumers;
individual industries; Federal, State,
tribal, or local government agencies; or
geographic regions.
c. Would not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
Unfunded Mandates Reform Act:
Under the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.):
a. This proposed rule would not
significantly or uniquely affect small
governments. A Small Government
Agency Plan is not required. The
proposed rule imposes no unfunded
mandates. Therefore, this proposed rule
would have no effect on small
governments’ responsibilities.
b. This proposed rule would not
produce a Federal requirement of $100
million or greater in any year and is not
a ‘‘significant regulatory action’’ under
the Unfunded Mandates Reform Act.
Takings: Under Executive Order
12630, this proposed rule does not have
significant takings implications. While
certain activities that were previously
unregulated would now be regulated,
possession and other activities with
African elephant ivory such as sale in
intrastate commerce would remain
unregulated. A takings implication
assessment is not required.
Federalism: These proposed revisions
to part 17 do not contain significant
Federalism implications. A federalism
summary impact statement under
Executive Order 13132 is not required.
Civil Justice Reform: Under Executive
Order 12988, the Office of the Solicitor
has determined that this proposed rule
does not unduly burden the judicial
system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act: This
proposed rule does not contain new
collections of information that require
approval by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.). OMB has reviewed and
approved the information collection
requirements associated with
applications and reporting for CITES
and ESA permits and assigned OMB
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Control No. 1018–0093, which expires
May 31, 2017. We may not conduct or
sponsor and you are not required to
respond to a collection of information
unless it displays a currently valid OMB
control number.
National Environmental Policy Act
(NEPA): This proposed rule is being
analyzed under the criteria of the
National Environmental Policy Act, the
Department of the Interior procedures
for compliance with NEPA
(Departmental Manual (DM) and 43 CFR
part 46), and Council on Environmental
Quality regulations for implementing
the procedural provisions of NEPA (40
CFR parts 1500–1508). We have
prepared a draft environmental
assessment to determine whether this
rule will have a significant impact on
the quality of the human environment
under the National Environmental
Policy Act of 1969. The draft
environmental assessment is available
online at https://www.regulations.gov at
Docket Number FWS–HQ–IA–2013–
0091.
Government-to-Government
Relationship with Tribes: The
Department of the Interior strives to
strengthen its government-togovernment relationship with Indian
tribes through a commitment to
consultation with Indian tribes and
recognition of their right to selfgovernance and tribal sovereignty. We
have evaluated this rule under the
Department’s consultation policy and
under the criteria in Executive Order
13175 and have determined that it has
no substantial direct effects on federally
recognized Indian tribes and that
consultation under the Department’s
tribal consultation policy is not
required. Individual tribal members
must meet the same regulatory
requirements as other individuals who
trade in African elephants, including
African elephant parts and products.
Energy Supply, Distribution, or Use:
Executive Order 13211 pertains to
regulations that significantly affect
energy supply, distribution, or use. This
proposed rule would revise the current
regulations in 50 CFR part 17 regarding
trade in African elephants and African
elephant parts and products. This
proposed rule would not significantly
affect energy supplies, distribution, and
use. Therefore, this action is not a
significant energy action, and no
Statement of Energy Effects is required.
Clarity of the Rule: We are required by
Executive Orders 12866 and 12988 and
by the Presidential Memorandum of
June 1, 1998, to write all rules in plain
language. This means that each rule we
publish must:
(a) Be logically organized;
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(b) Use the active voice to address
readers directly;
(c) Use clear language rather than
jargon;
(d) Be divided into short sections and
sentences; and
(e) Use lists and tables wherever
possible.
If you feel that we have not met these
requirements, please send us comments
by one of the methods listed under
ADDRESSES. To better help us revise the
rule, your comments should be as
specific as possible. For example, you
should tell us the numbers of the
sections or paragraphs that are unclearly
written, which sections or sentences are
too long, the sections where you feel
lists or tables would be useful, etc.
Public Comments
We are seeking comments on the
impact of the provisions in this
proposed rule on the affected public.
You may submit your comments and
materials concerning this proposed rule
by one of the methods listed under
ADDRESSES. We will not accept
comments sent by email or fax or to an
address not listed under ADDRESSES.
We will post your entire comment—
including your personal identifying
information—on https://
www.regulations.gov. If you provide
personal identifying information in your
written comments, you may request at
the top of your document that we
withhold this information from public
review. However, we cannot guarantee
that we will be able to do so.
Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection
on https://www.regulations.gov, or by
appointment, between 8 a.m. and 4
p.m., Monday through Friday, except
Federal holidays, at the U.S. Fish and
Wildlife Service; Division of
Management Authority; 5275 Leesburg
Pike; Falls Church, VA 22041;
telephone, (703) 358–2093.
References Cited
A list of references cited is available
online at https://www.regulations.gov at
Docket Number FWS–HQ–IA–2013–
0091.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Proposed Regulation Promulgation
For the reasons given in the preamble,
we propose to amend title 50, chapter I,
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subchapter B of the Code of Federal
Regulations as follows:
PART 17—[AMENDED]
1. The authority citation for part 17
continues to read as follows:
■
Authority: 16 U.S.C. 1361–1407; 1531–
1544; and 4201–4245, unless otherwise
noted.
2. Section 17.40 is amended by
revising paragraph (e) to read as follows:
■
§ 17.40
Special rules—mammals.
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*
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*
*
(e) African elephant (Loxodonta
africana). This paragraph (e) applies to
any specimen of the species Loxodonta
africana whether live or dead, including
any part or product thereof. Except as
provided in paragraphs (e)(2) through
(9) of this section, all of the prohibitions
and exceptions in §§ 17.31 and 17.32
apply to the African elephant. Persons
seeking to benefit from the exceptions
provided in this paragraph (e) must
demonstrate that they meet the criteria
to qualify for the exceptions.
(1) Definitions. In this paragraph (e),
antique means any item that meets all
four criteria under section 10(h) of the
Endangered Species Act (16 U.S.C.
1539(h)). Ivory means any African
elephant tusk and any piece of an
African elephant tusk. Raw ivory means
any African elephant tusk, and any
piece thereof, the surface of which,
polished or unpolished, is unaltered or
minimally carved. Worked ivory means
any African elephant tusk, and any
piece thereof, that is not raw ivory.
(2) Live animals and parts and
products other than ivory and sporthunted trophies. Live African elephants
and African elephant parts and products
other than ivory and sport-hunted
trophies may be imported into or
exported from the United States; sold or
offered for sale in interstate or foreign
commerce; and delivered, received,
carried, transported, or shipped in
interstate or foreign commerce in the
course of a commercial activity without
a threatened species permit issued
under § 17.32, provided the
requirements in 50 CFR parts 13, 14,
and 23 have been met.
(3) Interstate and foreign commerce of
ivory. Except for antiques and certain
manufactured items containing de
minimis quantities of ivory, sale or offer
for sale of ivory in interstate or foreign
commerce and delivery, receipt,
carrying, transport, or shipment of ivory
in interstate or foreign commerce in the
course of a commercial activity is
prohibited. Except as provided in
paragraphs (e)(5)(iii) and (e)(6) through
(8) of this section, manufactured items
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containing de minimis quantities of
ivory may be sold or offered for sale in
interstate or foreign commerce and
delivered, received, carried, transported,
or shipped in interstate or foreign
commerce in the course of a commercial
activity without a threatened species
permit issued under § 17.32, provided
they meet all of the following criteria:
(i) If the item is located within the
United States, the ivory was imported
into the United States prior to January
18, 1990, or was imported into the
United States under a Convention on
International Trade in Endangered
Species of Wild Fauna and Flora
(CITES) pre-Convention certificate with
no limitation on its commercial use;
(ii) If the item is located outside the
United States, the ivory was removed
from the wild prior to February 26,
1976;
(iii) The ivory is a fixed component or
components of a larger manufactured
item and is not in its current form the
primary source of the value of the item;
(iv) The ivory is not raw;
(v) The manufactured item is not
made wholly or primarily of ivory;
(vi) The total weight of the ivory
component or components is less than
200 grams; and
(vii) The item was manufactured
before [EFFECTIVE DATE OF THE
FINAL RULE].
(4) Import/export of raw ivory. Except
as provided in paragraphs (e)(6) through
(9) of this section, raw ivory may not be
imported into or exported from the
United States.
(5) Import/export of worked ivory.
Except as provided in paragraphs (e)(6)
through (9) of this section, worked ivory
may not be imported into or exported
from the United States unless it is
contained in a musical instrument, or is
part of a traveling exhibition, household
move, or inheritance, and meets the
following criteria:
(i) Musical instrument. Musical
instruments that contain worked ivory
may be imported into and exported from
the United States without a threatened
species permit issued under § 17.32
provided:
(A) The ivory was legally acquired
prior to February 26, 1976;
(B) The instrument containing worked
ivory is accompanied by a valid CITES
musical instrument certificate or
equivalent CITES document;
(C) The instrument is securely marked
or uniquely identified so that authorities
can verify that the certificate
corresponds to the musical instrument
in question; and
(D) The instrument is not sold, traded,
or otherwise disposed of while outside
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45179
the certificate holder’s country of usual
residence.
(ii) Traveling exhibition. Worked
ivory that is part of a traveling
exhibition may be imported into and
exported from the United States without
a threatened species permit issued
under § 17.32 provided:
(A) The ivory was legally acquired
prior to February 26, 1976;
(B) The item containing worked ivory
is accompanied by a valid CITES
traveling exhibition certificate (See the
requirements for traveling exhibition
certificates at 50 CFR 23.49);
(C) The item containing ivory is
securely marked or uniquely identified
so that authorities can verify that the
certificate corresponds to the item in
question; and
(D) The item containing worked ivory
is not sold, traded, or otherwise
disposed of while outside the certificate
holder’s country of usual residence.
(iii) Household move or inheritance.
Worked ivory may be imported into or
exported from the United States without
a threatened species permit issued
under § 17.32 for personal use as part of
a household move or as part of an
inheritance if the ivory was legally
acquired prior to February 26, 1976, and
the item is accompanied by a valid
CITES pre-Convention certificate. It is
unlawful to sell or offer for sale in
interstate or foreign commerce or to
deliver, receive, carry, transport, or ship
in interstate or foreign commerce and in
the course of a commercial activity any
African elephant ivory imported into
the United States as part of a household
move or inheritance. The exception in
paragraph (e)(3) of this section regarding
manufactured items containing de
minimis quantities of ivory does not
apply to items imported or exported
under this paragraph (e)(5)(iii) as part of
a household move or inheritance.
(6) Sport-hunted trophies. (i) African
elephant sport-hunted trophies may be
imported into the United States
provided:
(A) The trophy was legally taken in an
African elephant range country that
declared an ivory export quota to the
CITES Secretariat for the year in which
the trophy animal was killed;
(B) A determination is made that the
killing of the trophy animal will
enhance the survival of the species and
the trophy is accompanied by a
threatened species permit issued under
§ 17.32;
(C) The trophy is legibly marked in
accordance with 50 CFR part 23;
(D) The requirements in 50 CFR parts
13, 14, and 23 have been met; and
(E) No more than two African
elephant sport-hunted trophies are
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imported by any hunter in a calendar
year.
(ii) It is unlawful to sell or offer for
sale in interstate or foreign commerce or
to deliver, receive, carry, transport, or
ship in interstate or foreign commerce
and in the course of a commercial
activity any sport-hunted African
elephant trophy. The exception in
paragraph (e)(3) of this section regarding
manufactured items containing de
minimis quantities of ivory does not
apply to ivory imported or exported
under this paragraph (e)(6) as part of a
sport-hunted trophy.
(iii) Except as provided in paragraph
(e)(9) of this section, raw ivory that was
imported as part of a sport-hunted
trophy may not be exported from the
United States. Except as provided in
paragraphs (e)(5), (7), (8), and (9) of this
section, worked ivory imported as a
sport-hunted trophy may not be
exported from the United States. Parts of
a sport-hunted trophy other than ivory
may be exported from the United States
without a threatened species permit
issued under § 17.32 of this part,
provided the requirements of 50 CFR
parts 13, 14, and 23 have been met.
(7) Import/export of ivory for law
enforcement purposes. Raw or worked
ivory may be imported into and worked
ivory may be exported from the United
States by an employee or agent of a
Federal, State, or tribal government
agency for law enforcement purposes,
without a threatened species permit
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issued under § 17.32, provided the
requirements of 50 CFR parts 13, 14,
and 23 have been met. It is unlawful to
sell or offer for sale in interstate or
foreign commerce and to deliver,
receive, carry, transport, or ship in
interstate or foreign commerce and in
the course of a commercial activity any
African elephant ivory that was
imported into or exported from the
United States for law enforcement
purposes. The exception in paragraph
(e)(3) of this section regarding
manufactured items containing de
minimis quantities of ivory does not
apply to ivory imported or exported
under this paragraph (e)(7) for law
enforcement purposes.
(8) Import/export of ivory for genuine
scientific purposes. (i) Raw or worked
ivory may be imported into and worked
ivory may be exported from the United
States for genuine scientific purposes
that will contribute to the conservation
of the African elephant, provided:
(A) It is accompanied by a threatened
species permit issued under § 17.32; and
(B) The requirements of 50 CFR parts
13, 14, and 23 have been met.
(ii) It is unlawful to sell or offer for
sale in interstate or foreign commerce
and to deliver, receive, carry, transport,
or ship in interstate or foreign
commerce and in the course of a
commercial activity any African
elephant ivory that was imported into or
exported from the United States for
genuine scientific purposes. The
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Sfmt 9990
exception in paragraph (e)(3) of this
section regarding manufactured items
containing de minimis quantities of
ivory does not apply to ivory imported
or exported under this paragraph (e)(8)
for genuine scientific purposes.
(9) Antique ivory. Antiques (as
defined in paragraph (e)(1) of this
section) are not subject to the provisions
of this rule. Antiques containing or
consisting of ivory may therefore be
imported into or exported from the
United States without a threatened
species permit issued under § 17.32,
provided the requirements of 50 CFR
parts 13, 14, and 23 have been met.
Also, the provisions and prohibitions
under the African Elephant
Conservation Act (16 U.S.C. 4201 et.
seq.) apply, regardless of the age of the
item. Antiques that consist of or contain
raw or worked ivory may similarly be
sold or offered for sale in interstate or
foreign commerce and delivered,
received, carried, transported, or
shipped in interstate or foreign
commerce in the course of a commercial
activity without a threatened species
permit issued under § 17.32.
*
*
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*
Michael Bean,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
[FR Doc. 2015–18487 Filed 7–27–15; 8:45 am]
BILLING CODE 4310–55–P
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Agencies
[Federal Register Volume 80, Number 145 (Wednesday, July 29, 2015)]
[Proposed Rules]
[Pages 45154-45180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18487]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-IA-2013-0091; 96300-1671-0000-R4]
RIN 1018-AX84
Endangered and Threatened Wildlife and Plants; Revision of the
Section 4(d) Rule for the African Elephant (Loxodonta africana)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
proposing to revise the rule for the African elephant promulgated under
section 4(d) of the Endangered Species Act of 1973, as amended (ESA),
to increase protection for African elephants in response to the
alarming rise in poaching of the species to fuel the growing illegal
trade in ivory. The African elephant was listed as threatened under the
ESA effective June 11, 1978, and at the same time a rule issued under
section 4(d) of the ESA (a ``4(d) rule'') was promulgated to regulate
import and use of specimens of the species in the United States. This
proposed rule would update the current 4(d) rule with measures that are
appropriate for the current conservation needs of the species. We are
proposing measures that are necessary and advisable to provide for the
conservation of the African elephant as well as appropriate
prohibitions from section 9(a)(1) of the ESA. Among other things, we
propose to incorporate into the 4(d) rule certain restrictions on the
import and export of African elephant ivory contained in the African
Elephant Conservation Act (AfECA) as measures necessary and advisable
for the conservation of the African elephant. We are not, however,
revising or reconsidering actions taken under the AfECA, including our
determinations in 1988 and 1989 to impose moratoria on the import of
ivory other than sport-hunted trophies from both range and intermediary
countries. We are proposing to take these actions under section 4(d) of
the ESA to increase protection and benefit the conservation of African
elephants, without unnecessarily restricting activities that have no
conservation effect or are strictly regulated under other law.
DATES: In preparing the final decision on this proposed rule, we will
consider comments received or postmarked on or before September 28,
2015.
ADDRESSES: You may submit comments by one of the following methods:
Electronically: Go to the Federal eRulemaking Portal:
https://www.regulations.gov. In the Search box, enter FWS-HQ-IA-2013-
0091, which is the docket number for this rulemaking. You may submit a
comment by clicking on ``Comment Now!''
By hard copy: Submit by U.S. mail or hand-delivery to:
Public Comments Processing, Attn: FWS-HQ-IA-2013-0091; Division of
Policy, Performance, and Management Programs; U.S. Fish and Wildlife
Service; 5275 Leesburg Pike, MS: BPHC; Falls Church, VA 22041.
We will not accept email or faxes. We will post all comments on
https://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section at
the end of SUPPLEMENTARY INFORMATION for further information about
submitting comments).
FOR FURTHER INFORMATION CONTACT: Craig Hoover, Chief, Wildlife Trade
and Conservation Branch, Division of Management Authority; U.S. Fish
and Wildlife Service; 5275 Leesburg Pike, MS: IA; Falls Church, VA
22041 (telephone, (703) 358-2093).
SUPPLEMENTARY INFORMATION:
Applicable Laws
In the United States, the African elephant is primarily protected
and managed under the Endangered Species Act (ESA) (16 U.S.C. 1531 et
seq.); 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; and the African
Elephant Conservation Act (AfECA) (16 U.S.C. 4201 et seq.).
Endangered Species Act
Under the ESA, species may be listed either as ``threatened'' or as
``endangered.'' When a species is listed as endangered under the ESA,
certain actions are prohibited under section 9 (16 U.S.C. 1538), as
specified at 50 CFR 17.21. These include prohibitions on take within
the United States, within the territorial seas of the United States, or
upon the high seas; import; export; sale and offer for sale in
interstate or foreign commerce; and delivery, receipt, carrying,
transport, or shipment in interstate or foreign commerce in the course
of a commercial activity.
The ESA does not specify particular prohibitions and exceptions to
those
[[Page 45155]]
prohibitions for threatened species. Instead, under section 4(d) of the
ESA, the Secretary of the Interior is given the discretion to issue
such regulations as deemed necessary and advisable to provide for the
conservation of the species. The Secretary also has the discretion to
prohibit by regulation with respect to any threatened species any act
prohibited under section 9(a)(1) of the ESA for endangered species.
Exercising this discretion under section 4(d), the Service has
developed general prohibitions (50 CFR 17.31) and established a permit
process for specified exceptions to those prohibitions (50 CFR 17.32)
that apply to most threatened species. Permits issued under 50 CFR
17.32 must be for ``Scientific purposes, or the enhancement of
propagation or survival, or economic hardship, or zoological
exhibition, or educational purposes, or incidental taking, or special
purposes consistent with the purposes of the [ESA].''
Under section 4(d) of the ESA, the Service may also develop
specific prohibitions and exceptions tailored to the particular
conservation needs of a threatened species. In such cases, the Service
issues a 4(d) rule that may include some of the prohibitions and
authorizations set out at 50 CFR 17.31 and 17.32, but that also may be
more or less restrictive than the general provisions at 50 CFR 17.31
and 17.32.
Convention on International Trade in Endangered Species of Wild Fauna
and Flora
CITES entered into force in 1975, and is currently implemented by
180 countries (called Parties), including the United States. The aim of
CITES is to regulate international trade in listed animal and plant
species, including their parts and products, to ensure the trade is
legal and does not threaten the survival of species. CITES regulates
both commercial and noncommercial international trade through a system
of permits and certificates that must be presented when leaving and
entering a country with CITES specimens. Species are listed in one of
three appendices, which provide different levels of protection. In some
circumstances, different populations of a species are listed at
different levels. Appendix I includes species that are threatened with
extinction and are or may be affected by trade. The Convention states
that Appendix-I species must be subject to ``particularly strict
regulation'' and trade in specimens of these species should only be
authorized ``in exceptional circumstances.'' Appendix II includes
species that are not necessarily threatened with extinction now, but
may become so if international trade is not regulated. Appendix III
includes species that a range country has identified as being subject
to regulation within its jurisdiction and as needing cooperation of
other Parties in the control of international trade.
Import and export of CITES species is prohibited unless accompanied
by any required CITES documents. Documentation requirements vary
depending on the appendix in which the species or population is listed
and other factors. CITES documents cannot be issued until specific
biological and legal findings have been made. CITES does not regulate
take or domestic trade of listed species. It contributes to the
conservation of listed species by regulating international trade and,
in order to make the necessary findings, encouraging assessment and
analysis of the population status of species in trade and the effects
of international trade on wild populations to ensure that trade is
legal and does not threaten the survival of the species.
African Elephant Conservation Act
The AfECA was enacted in 1988, to ``perpetuate healthy populations
of African elephants'' by regulating the import and export of certain
African elephant ivory to and from the United States. Building from and
supporting existing programs under CITES, the AfECA called on the
Service to establish moratoria on the import of raw and worked ivory
from both African elephant range countries and intermediary countries
(those that export ivory that does not originate in that country) that
failed to meet certain statutory criteria. The statute also states that
it does not provide authority for the Service to establish a moratorium
that prohibits the import of sport-hunted trophies that meet certain
standards.
In addition to authorizing establishment of the moratoria and
prohibiting any import in violation of the terms of any moratorium, the
AfECA prohibits: The import of raw African elephant ivory from any
country that is not a range country; the import of raw or worked ivory
exported from a range country in violation of that country's laws or
applicable CITES programs; the import of worked ivory, other than
certain personal effects, unless the exporting country has determined
that the ivory was legally acquired; and the export of all raw (but not
worked) African elephant ivory. While the AfECA comprehensively
addresses the import of ivory into the United States, it does not
address other uses of ivory or African elephant specimens other than
ivory and sport-hunted trophies. The AfECA does not regulate the use of
ivory within the United States and, other than the prohibition on the
export of raw ivory, does not regulate export of ivory from the United
States. The AfECA also does not regulate the import or export of live
African elephants.
Regulatory Background
Ghana first listed the African elephant in CITES Appendix III on
February 26, 1976. Later that year, the CITES Parties agreed to add
African elephants to Appendix II, effective February 4, 1977. In
October 1989, all populations of African elephants were transferred
from CITES Appendix II to Appendix I (effective in January 1990), which
ended much of the previous 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 population of South Africa was transferred from CITES Appendix
I to Appendix II in 2000, with an annotation that allowed trade in
hunting trophies for noncommercial purposes, trade in live animals for
reintroduction purposes, and trade in hides and leather goods. (At that
time, the Panel of Experts reviewing South Africa's proposal concluded,
among other things, that South Africa's elephant population was
increasing, that there were no apparent threats to the status of the
population, and that the country's anti-poaching measures were
``extremely effective.'') Since then, the CITES Parties have revised
the Appendix-II listing annotation three times. The current annotation,
in place since 2007, covers the Appendix-II populations of Botswana,
Namibia, South Africa, and Zimbabwe and allows export of: Sport-hunted
trophies for
[[Page 45156]]
noncommercial purposes; live animals to appropriate and acceptable
destinations; hides; hair; certain ivory carvings from Namibia and
Zimbabwe for noncommercial purposes; and a one-time export of specific
quantities of raw ivory, once certain conditions had been met (this
export, to China and Japan, took place in 2009). As in previous
versions of the annotation, all other African elephant specimens from
these four populations are deemed to be specimens of species included
in Appendix I and the trade in them is regulated accordingly.
The African elephant was listed as threatened under the ESA,
effective June 11, 1978 (43 FR 20499, May 12, 1978). A review of the
status of the species at that time showed that the African elephant was
declining in many parts of its range and that habitat loss, illegal
killing of elephants for their ivory, and inadequacy of existing
regulatory mechanisms were factors contributing to the decline. At the
same time the African elephant was designated as a threatened species,
the Service promulgated a 4(d) rule to regulate import and certain
interstate commerce of the species in the United States (43 FR 20499,
May 12, 1978).
The 1978 4(d) rule for the African elephant stated that the
prohibitions at 50 CFR 17.31 applied to any African elephant, alive or
dead, and to any part, product, or offspring thereof, with certain
exceptions. Specifically, under the 1978 rule, the prohibition at 50
CFR 17.31 against importation did not apply to African elephant
specimens that had originated in the wild in a country that was a Party
to CITES if 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 en route to
the United States. (At that time, the only African elephant range
States that were Parties to CITES were Botswana, Ghana, Niger, Nigeria,
Senegal, South Africa, and Zaire [now the Democratic Republic of the
Congo].) The 1978 rule allowed for a special purpose permit to be
issued in accordance with the provisions of 50 CFR 17.32 to authorize
any activity otherwise prohibited with regard to the African elephant,
upon submission of proof that the specimens were already in the United
States on June 11, 1978, or that the specimens were imported under the
exception described above.
The 4(d) rule has been amended twice in response to changes in the
status of African elephants and the illegal trade in elephant ivory,
and to more closely align U.S. requirements with actions taken by the
CITES Parties. On July 20, 1982, the Service amended the 4(d) rule for
the African elephant (47 FR 31384) to ease restrictions on domestic
activities and to more closely align its requirements with provisions
in CITES Resolution Conf. 3.12, Trade in African elephant ivory,
adopted by the CITES Parties at the third meeting of the Conference of
the Parties (CoP3, 1981). The 1982 rule applied only to import and
export of ivory (and not other elephant specimens) and eliminated the
prohibitions under the ESA against taking, possession of unlawfully
taken specimens, and certain activities for the purpose of engaging in
interstate and foreign commerce, including the sale and offer for sale
in interstate commerce of African elephant specimens. At that time, the
Service concluded that the restrictions on interstate commerce
contained in the 1978 rule were unnecessary and that the most effective
means of utilizing limited resources to control ivory trade was through
enforcement efforts focused on imports.
Following enactment of the AfECA (in October 1988), the Service
established, on December 27, 1988, a moratorium on the import into the
United States of African elephant ivory from countries that were not
parties to CITES (53 FR 52242). On February 24, 1989, the Service
established a second moratorium on all ivory imports into the United
States from Somalia (54 FR 8008). On June 9, 1989, the Service put in
place the current moratorium, which bans the import of ivory other than
sport-hunted trophies from both range and intermediary countries (54 FR
24758).
The 4(d) rule was revised on August 10, 1992 (57 FR 35473),
following establishment of the 1989 moratorium under the AfECA on the
import of African elephant ivory into the United States, and again on
June 26, 2014 (79 FR 30400, May 27, 2014), associated with the update
of U.S. CITES implementing regulations. In the 2014 revision of the
4(d) rule, we removed the CITES marking requirements for African
elephant sport-hunted trophies. At the same time, these marking
requirements were updated and incorporated into our CITES regulations
at 50 CFR 23.74. The purpose of this change was to make clear what is
required under CITES (at 50 CFR part 23) for trade in sport-hunted
trophies and what is required under the ESA (at 50 CFR part 17).
Need for Regulatory Actions
We have reevaluated the provisions of the 4(d) rule and considered
other administrative actions in response to unprecedented increases in
the illegal killing of elephants, an alarming growth in illegal trade
of elephant ivory, recommendations adopted by the CITES Parties in
March 2013 to help curb the illegal killing and illegal trade, issuance
of Executive Order 13648 on Combating Wildlife Trafficking in July
2013, and the stated priorities in the National Strategy for Combating
Wildlife Trafficking, issued by President Obama in February 2014.
Illegal Killing of Elephants and Illegal Ivory Trade
The increase in poaching of elephants and the escalation of the
illegal trade in ivory are described in documents made available at
CoP16. See, in particular, CoP16 Doc. 53.1, Monitoring the illegal
killing of elephants (including the Addendum); CoP16 Doc. 53.2.2,
Monitoring of illegal trade in ivory and other elephant specimens; and
Elephants in the Dust--the African Elephant Crisis, all available at
https://www.cites.org. Status of African elephant populations and levels
of illegal killing and the illegal trade in ivory: A report to the
African Elephant Summit, December 2013 (also available at https://www.cites.org) provides an update to information presented at CoP16. A
further update on the status of African elephants was prepared for the
65th meeting of the CITES Standing Committee (SC65), in July 2014, and
presented in Annex 1 to document SC65 Doc. 42.1, Elephant conservation,
illegal killing and ivory trade.
CoP16 Doc. 53.1 and its Addendum (prepared by the CITES
Secretariat), the December 2013 report for the African Elephant Summit
(prepared by the CITES Secretariat, the International Union for
Conservation of Nature (IUCN), and TRAFFIC, the Wildlife Trade
Monitoring Network), and Annex 1 to SC65 Doc. 42.1 (prepared by the
IUCN/Species Survival Commission Asian and African Elephant Specialists
Groups, the CITES Secretariat, the United Nations Environment
Programme's World Conservation Monitoring Centre (UNEP-WCMC), and
TRAFFIC) provide analyses of trends in levels of illegal killing of
elephants based on data from the CITES Monitoring the Illegal Killing
of Elephants (MIKE) program. MIKE is a site-based monitoring system
intended to measure levels and trends in the illegal killing of
elephants and to determine changes in these trends over time. Data are
collected by ranger patrols and others at established MIKE sites and
reported to the CITES Secretariat. The reports in CoP16 Doc. 53.1 and
its Addendum contain analyses of data collected between 2002
[[Page 45157]]
and 2011, from more than 40 MIKE sites across Africa. The report
prepared for the African Elephant Summit in December 2013 contains an
updated MIKE analysis using 2012 data, and the report in the Annex to
SC65 Doc. 42.1 contains a further updated MIKE analysis using data
collected through 2013. The data set used for the most recent analysis
(in SC65 Doc. 42.1) consists of 12,073 records of elephant carcasses
found between 2002 and the end of 2013, at 53 MIKE sites in 29
countries across Africa.
MIKE data are used to evaluate relative poaching levels based on
the Proportion of Illegally Killed Elephants (PIKE), which is
calculated as the number of illegally killed elephants found divided by
the total number of elephant carcasses encountered by patrols or other
means, aggregated by year for each site. The data in these reports show
a steady increase in levels of illegal killing starting in 2006, with
2011 having the highest levels of poaching since MIKE records began in
2002. In 2012 and 2013, there appears to be a gradual decline, with
2013 levels close to those recorded in 2010. Despite the decline since
2011, poaching levels overall remain alarmingly high, with nearly two-
thirds of dead elephants found in 2013 deemed to have been illegally
killed. These reports state that the PIKE levels translate to 17,000
elephants killed at African MIKE sites in 2011, and 15,000 elephants
killed at African MIKE sites in 2012. These numbers were estimated
using models. The authors of the 2014 report prepared for SC65 note
that it was not possible to derive an estimate for 2013 using the same
method as in previous years because some of the required covariates for
2013 were not yet available. However, the authors provide a
``preliminary and rough calculation'' using a different method that
estimates more than 14,000 elephants were killed at MIKE sites in 2013.
The authors stress that this estimate must be treated with caution, but
they state that ``there are good reasons to believe that the number of
elephants illegally killed in Africa in 2013 ran, as in previous years,
into the tens of thousands, perhaps in the order of 20 to 22
thousand.''
A joint press release, issued by the CITES Secretariat, IUCN, and
TRAFFIC International on December 2, 2013, at the opening of the
African Elephant Summit in Gabarone, Botswana, asserted that the
figures for MIKE sites amount to an estimated 25,000 elephants killed
illegally across Africa in 2011, and 22,000 killed illegally in 2012.
Others have suggested that the numbers killed continent-wide are likely
even higher. The statistical model used to evaluate MIKE data estimates
that the ``threshold of sustainability'' at MIKE sites was crossed in
2010, with poaching rates remaining above the population growth rate of
4 to 5 percent for healthy elephant populations every year since.
A recent study, published in the Proceedings of the National
Academy of Sciences (in July 2014), reaffirmed these assertions.
Wittemyer et al. (2014) used MIKE data to analyze the impacts of
illegal killing on elephant populations across the African continent,
using two different approaches. The results demonstrate ``an over-
harvest driven decline in African elephants likely began in 2010.'' The
authors assumed an average annual population increase in the absence of
illegal killing of 4.2 percent. They estimated that illegal killing
rates averaged about 6.8 percent between 2010 and 2012, which the
authors estimate corresponds to more than 33,000 elephants killed per
year (based on current population estimates). They also noted that
preliminary data for 2013 suggest regional and continental levels were
slightly lower than for 2012, but still unsustainable.
CoP16 Doc. 53.2.2 and Annex 1 to SC65 Doc. 42.1 contain reports,
prepared by TRAFFIC, on data in the CITES Elephant Trade Information
System (ETIS). ETIS is a system for collecting and compiling law
enforcement data on seizures and confiscations in order to monitor the
pattern and scale of illegal trade in elephant specimens. TRAFFIC
receives seizure and confiscation data from CITES Parties, manages and
coordinates the ETIS system, and produces a comprehensive report for
meetings of the CoP and updates for meetings of the Standing Committee.
The report in CoP16 Doc. 53.2.2 covers the period 1996 through
2011, and the report in SC65 Doc. 42.1 covers the period 1996 through
2012 (data for 2013 were not yet complete when the report was
prepared). The data set used for the analysis presented in SC65 Doc.
42.1 includes 14,070 separate raw or worked ivory seizure records from
72 countries or territories during 1996-2012. Using 1998 as a baseline
(because it is the first full year after some populations of African
elephant were transferred from Appendix I to Appendix II and, at the
same time, the development of monitoring systems, including ETIS, was
mandated by the Parties), the reports examine trends in both the
frequency of illegal ivory trade transactions and the scale of the
illegal trade in ivory.
Illegal trade activity (frequency of transactions) remained at or
slightly above 1998 levels up to 2006. In 2006, a gradual increase in
activity began and grew with each successive year, with a ``major
surge'' in 2011. The authors report that the frequency of illegal ivory
trade transactions in 2011 represented ``a three-fold increase in
illegal trade activity since 1998.''
The scale of illegal trade was assessed by evaluating the weight of
ivory traded illegally. The authors caution that there is more
uncertainty in evaluating the weight of ivory in illegal trade than in
evaluating the frequency of illegal transactions, but the trend is
clear. Like the trend in frequency of transactions, there was relative
stability in the weight of ivory in illegal trade through 2007,
followed by a sharp increase in the following years. The authors
estimate that the quantity of illegal ivory in trade in 2011, measured
by weight, was nearly three times 1998 levels, and, although 2012 data
show a slight decrease compared to 2011, levels in 2012 represent a
value that is about two and a half times the 1998 levels. This upward
trend reflects a major increase in large consignments of ivory (over
100 kg) in illegal trade, which, the authors note, points to the
increasing involvement of international criminal syndicates. In its
2014 report to SC65, TRAFFIC states that the frequency of large-scale
ivory seizures has increased greatly since 2000, and that the ``upward
surge in the weight of ivory seized from 2009 through 2012 has been
primarily driven by increased seizures in the large ivory weight
class.'' Although 2013 data were not complete when the report was
written and, therefore, were not included in the analysis, the authors
note that the 18 seizures made in 2013 for which they had data
``collectively constitute the greatest quantity of ivory derived from
large-scale seizure events going back to 1989.''
Elephants in the Dust--the African Elephant Crisis is a report
commissioned by the CITES Secretariat through its MIKE program and
prepared by UNEP, the CITES Secretariat, IUCN, and TRAFFIC for
presentation at CoP16. This report highlights the long-term threats to
African elephants posed by habitat loss due to human population growth
and large-scale conversion of land for agriculture. It also raises
alarm at the added impact of the increasing poaching levels on elephant
populations, not only in central Africa but also in previously secure
areas of east, west, and southern Africa. Both the TRAFFIC report to
CoP16 and Elephants in the Dust conclude that elephants are
[[Page 45158]]
facing the most serious conservation crisis since 1989, when the
African elephant was transferred from CITES Appendix II to Appendix I.
The poaching of African elephants to supply international demand for
ivory has reached unprecedented levels, and opportunistic poaching has
been replaced by coordinated slaughter commissioned by organized
networks or syndicates.
The CITES Parties have taken steps to address the growing illegal
trade in ivory, including, at CoP16, calling on countries to ensure
that they have comprehensive measures in place to regulate the domestic
trade in raw and worked ivory. At SC65, the Standing Committee took
steps to hold countries that have been identified as being
significantly involved in illegal ivory trade (either as source,
transit, or destination countries for illegal ivory) accountable.
Identified countries that fail to take actions to resolve problems by
the agreed deadlines may be subject to CITES trade sanctions.
U.S. Involvement in the Illegal Ivory Trade
Demand for ivory is driving the current poaching crisis. Although
the primary markets are in Asia, particularly in China and Thailand,
the United States continues to play a role as a destination and transit
country for illegally traded elephant ivory. Service wildlife
inspectors stationed at major U.S. ports intercept smuggled wildlife
and ensure that wildlife importers and exporters comply with
declaration, permit, and other requirements for international trade in
elephants and other wildlife species. Over the years, seizures of
unlawfully imported and exported elephant specimens at U.S. ports have
ranged from whole elephant tusks and large ivory carvings to knife
handles, jewelry made from ivory or hair, and tourist souvenirs
including items made from elephant feet and bones. The Service provides
seizure data to TRAFFIC annually for inclusion in the CITES ETIS
database. Since 1990, the annual number of seizure cases involving
elephant specimens at U.S. ports has ranged from over 450 (in 1990) to
60 (in 2008); in most other years the number falls between 75 and 250
cases. In 2012, the most recent year for which we have complete data,
there were about 225 seizure cases involving elephant specimens, which
resulted in seizure of over 1,500 items that contained or consisted of
elephant parts or products. Nearly 1,000 of those items contained or
consisted of elephant ivory. (About 300 of the items were elephant
hairs.)
Service special agents have investigated multiple smuggling
operations involving the trafficking of elephant ivory for U.S.
markets. Some examples of major investigations are provided here. In
September 2012, the owner of a Philadelphia African art store was
arrested and pleaded guilty to smuggling African elephant ivory into
the United States. Approximately one ton of elephant ivory was seized
from his store; it was the largest ivory seizure in U.S. history.
According to the indictment, the art store owner paid a co-conspirator
to travel to Africa to purchase raw elephant ivory and have it carved
to his specifications and stained or dyed so that the carvings would
appear old. He sold the carvings at his store in Philadelphia and
elsewhere in the United States as ``antiques.''
The arrest in Philadelphia was an outgrowth of a multi-year
investigation that documented over 20 shipments of newly carved
elephant ivory smuggled into the United States in air and ocean cargo
from Cameroon, Ivory Coast, Nigeria, and Uganda. The smuggled ivory
came into the country through New Jersey and New York, and was
distributed to collectors and retailers across the United States,
including to Chicago, Houston, Memphis, New York City, Philadelphia,
and Trenton. A total of 10 individuals were charged and later convicted
as part of this investigation. Much of the ivory in this case was sent
via parcel accompanied by fraudulent shipping and customs documents,
and disguised with clay and other substances to look like musical
instruments and wooden statues.
Service investigators teamed with officers from the New York
Department of Environmental Conservation to probe illegal ivory sales
by a New York City jeweler distributor and two Manhattan retailers.
This investigation documented a booming and unauthorized trade in
ivory. Prosecutions were pursued by the Attorney General for the State
of New York based on violations of State laws regulating the sale of
elephant ivory. The stores prosecuted paid $50,000 in fines and
forfeited over one ton of elephant ivory (which was destroyed at the
Service's ``ivory crush'' described below). The distributor forfeited
70 pounds of elephant ivory valued at $30,000 and paid $10,000 in
restitution.
Service special agents worked with the Thai Royal Police to secure
the 2010 U.S. indictment of two businessmen (the owner of a Los Angeles
area donut shop and a Thai trafficker) and four arrests in Thailand in
a case that exposed transcontinental trafficking in elephant ivory.
Over the course of this 5-year undercover investigation, officers
showed that ivory was being smuggled from Africa into Thailand by Thai
operatives who then sold it to clients in the United States and other
countries. The investigation began in 2006, when Service wildlife
inspectors conducting an inspection ``blitz'' at the international mail
facility in Los Angeles intercepted a package of elephant ivory that
had been mailed from Thailand to a U.S. business and labeled as toys.
The U.S. defendant pleaded guilty to Federal charges.
Operation Scratchoff was a multi-year investigation, launched by
the Service in New York in 2006. It documented and disrupted the
illegal activities of both international smugglers who were bringing
ivory into the country from Africa and U.S. retailers involved in this
black market trade. Special agents documented smuggled ivory entering
the United States from Cameroon, Gabon, Ghana, Ivory Coast, Kenya,
Nigeria, and Uganda. Most of the ivory smuggled by defendants in this
case was shipped from Africa via mail parcel through John F. Kennedy
International Airport. The shipments were accompanied by fraudulent
shipping and customs documents identifying their contents as African
wooden handicrafts or wooden statues. The ivory itself was painted to
look like wood; covered with clay; or hidden inside wooden handicrafts,
such as traditional African musical instruments. Work on this
investigation resulted in the arrest and conviction of eight
individuals in the United States on felony smuggling and/or Lacey Act
(16 U.S.C. 3371 et seq.) charges with final sentencing in 2010 and
2011. Prison terms for five of these defendants, which included a 33-
month sentence for one, totaled more than 7 years. Operation Scratchoff
also led to the arrest in January 2010 of an ivory supplier in Uganda
by Ugandan authorities, and the identification of additional ivory
trafficking suspects.
In 2008, a Canadian citizen was sentenced to 5 years in prison and
ordered to pay a $100,000 fine for illegally smuggling ivory from
Cameroon into the United States for sale here. The perpetrator operated
art import and export businesses in Montreal, Canada and in Cameroon
that were fronts for smuggling products made from protected wildlife
species, including raw elephant ivory. She ran a sophisticated
smuggling operation that utilized local artists and craftsmen in
Cameroon, operatives within international shipping companies, contacts
in the illegal ivory trade, her business in Canada, and partners in
three countries. Two of her shipments,
[[Page 45159]]
sent to Ohio, included fresh ivory from more than 20 recently killed
elephants.
In 2006, Service special agents secured a 20-count criminal
indictment against Primitive Art Works, a Chicago art gallery
specializing in high-end exotic artifacts from around the world, and
its two owners for smuggling elephant ivory and products made from
other protected species into the United States. The Service seized over
1,000 ivory carvings and tusks from the defendants, who were asking as
much as $50,000 a piece for these items. Both owners pleaded guilty to
wildlife violations later that year.
In 2001, during Operation Loxa, Service officers in Los Angeles
intercepted more than 250 pounds of smuggled African elephant ivory,
the largest ivory seizure ever on the west coast of the United States.
The two shipments, which were smuggled from Nigeria, were declared to
customs as handcrafted furniture. The ivory included whole tusks and
pieces hidden inside furniture and concealed in beaded cloth. Four
individuals were arrested and indicted for conspiracy to smuggle
elephant ivory into the United States. Three of them were convicted.
Service special agents have also investigated cases involving
smuggling of elephant ivory out of the United States to other markets,
particularly in Asia. In an investigation, known as Operation Crash, an
Asian antique dealer was convicted for his role in the conspiracy to
smuggle items made from elephant ivory and rhinoceros horn valued at
over $1,000,000. The investigation revealed that this individual worked
in the United States as a buyer for four different Asian dealers, who
were purchasing numerous ivory carvings from auction houses in the
United States. After purchasing the ivory at auctions, the antique
dealer smuggled the ivory (through the mail) to various locations in
Hong Kong, using false declarations to avoid export controls.
In 2011, a Chinese national was intercepted at John F. Kennedy
International Airport prior to boarding a plane to Shanghai, China.
Service investigators found 18 elephant ivory carvings concealed in his
luggage. This individual was an Asian art dealer who purchased the
carvings at various U.S. auction houses during a week-long buying trip.
Upon arrest, he told agents that he wrapped the ivory carvings in tin
foil to avoid x-ray detection.
At auctions in the United States, Service law enforcement officers
have documented foreign buyers placing absentee bids on wildlife items,
including those made from African elephant ivory. In some cases, the
ivory items are smuggled directly to the foreign buyers. In many
instances, however, the foreign buyers employ couriers with residences
in the United States to collect the elephant ivory and smuggle it
overseas on their behalf. We are concerned that foreign ivory buyers
and couriers view the United States as a significant source and market
for elephant ivory.
In November 2013, the Service destroyed nearly six tons of
contraband African and Asian elephant ivory that had been either seized
at U.S. ports or as part of law enforcement investigations over the
past 25 years for violation of wildlife laws. We crushed this
contraband ivory, which had been stored at the Service's National
Wildlife Property Repository, to raise public awareness about the
current African elephant poaching crisis and to send a clear message
that the United States will not tolerate ivory trafficking and the toll
it is taking on wild elephant populations. The six tons of ivory
crushed in 2013 underscores the continuing U.S. role in the illegal
market and the need for us to take further actions to curtail that
role.
There is also a legal market for ivory within the United States. We
do not have comprehensive information on the U.S. domestic ivory
market. Tackling the Ivories, a 2004 report by Douglas Williamson for
TRAFFIC North America, described the status of U.S. trade in elephant
and hippopotamus ivory. At that time, the author noted that ``as one of
the world's largest markets for wildlife products, the [United States]
has long played a significant role in the international ivory trade.''
He concluded that the ivory trade within the United States was not
closely monitored and that its full extent was unknown. In addition to
ivory available from retail outlets, he noted that there was
``significant trade conducted via the internet, with little
oversight.'' The domestic trade involved both raw and worked ivory.
Worked ivory was readily available in the form of carvings, jewelry,
piano keys, and other items. Raw ivory was bought by companies and
individuals to be fashioned into specialty items including knife
handles, gun grips, and pool cues. Along with legal trade, Williamson
found evidence of illegal trade, including internet sellers in China
that routinely shipped ivory to the United States, via express delivery
service, and offered to falsely label the shipments as ``bone
carvings.''
In a 2006-2007 survey of selected metropolitan areas across the
United States, Martin and Stiles (2008) identified retail
establishments trading in worked ivory, including ivory from African
elephants. In each area surveyed, the surveyors visited major flea
markets, antique markets, main shopping areas for antiques and crafts,
department stores, and luxury hotel gift shops. The study does not
identify all establishments trading in ivory, but gives a general idea
of the number of establishments and geographic scope. In the 16 areas
surveyed, the authors identified a total of 652 retail outlets offering
a total of more than 23,000 ivory products for sale. Of the areas
surveyed, those with the most retail outlets and the greatest number of
ivory products for sale were: New York City (124 retail outlets
containing a total of 11,376 ivory products); San Francisco Bay area
(40 retail outlets containing a total of 2,777 ivory products); and
greater Los Angeles (170 retail outlets containing a total of 2,605
ivory products). Martin and Stiles estimated that as much as one-third
of the items they found were imported illegally after the 1989 AfECA
import moratorium.
In March and April of 2014, one of the authors of the 2008 study
conducted a follow-up survey (Stiles 2015) in Los Angeles and San
Francisco, California. He found a total of more than 1,250 ivory items
offered for sale by 107 vendors in these two California cities, ``with
777 items and 77 vendors in Los Angeles and well over 473 ivory items
and 30 vendors in San Francisco.'' While there were ``significantly
fewer venders'' offering ivory for sale, compared to the 2006-2007
survey, Stiles noted ``a much higher incidence of what appears to be
ivory of recent manufacture in California, roughly doubling from
approximately 25% in 2006 to about half in 2014. In addition, many of
the ivory items seen for sale in California advertised as antiques
(i.e., more than 100 years old) appear to be more likely from recently
killed elephants.''
Basis for Regulatory Changes and Necessary and Advisable Determination
It is often impossible to distinguish ivory legally imported into
the United States from that which has been smuggled into the country,
which significantly undermines enforcement efforts and provides an
opportunity for illegal ivory to be laundered through U.S. markets. In
addition, U.S. citizens may be involved in the global ivory market with
ivory that has never been imported into the United States. The Service
has reevaluated our domestic controls, given the current poaching
crisis in Africa and the associated increase in illegal trade in ivory,
the
[[Page 45160]]
recent CITES recommendations, and evidence that substantial quantities
of illegal ivory are making their way into U.S. markets. We have
determined that it is appropriate to take certain regulatory actions,
including revision of the 4(d) rule as necessary and advisable for the
conservation of the species and to include certain prohibitions from
section 9(a)(1) of the ESA, to more strictly regulate U.S. trade in
ivory. The proposed revisions would regulate import, export, and
commercial use of African elephant ivory and sport-hunted trophies and
appropriately protect live elephants within the United States, while
including certain limited exceptions for items and activities that we
do not believe, based on all available evidence, are contributing to
the poaching of elephants in Africa, including trade in live animals,
parts and products other than ivory, and certain manufactured items
containing ivory that meet specific criteria.
These new restrictions would facilitate enforcement efforts within
the United States and improve regulation of both domestic and foreign
trade in elephant ivory by U.S. citizens. Improved domestic controls
will make it more difficult to launder illegal elephant ivory through
U.S. markets, which will contribute to a reduction in poaching of
African elephants.
This proposed action is consistent with Executive Order 13648 on
Combating Wildlife Trafficking signed by President Obama on July 1,
2013, to ``address the significant effects of wildlife trafficking on
the national interests of the United States.'' The Executive Order
calls on executive departments and agencies to take all appropriate
actions within their authority to ``enhance domestic efforts to combat
wildlife trafficking, to assist foreign nations in building capacity to
combat wildlife trafficking, and to assist in combating transnational
organized crime.'' Increased control of the U.S. market for elephant
ivory is also among the administrative actions called for in the
National Strategy for Combating Wildlife Trafficking, issued by
President Obama on February 11, 2014. Director's Order No. 210, issued
by the Director of the U.S. Fish and Wildlife Service, established
policy and procedures for the Service to follow in implementing the
National Strategy with regard to trade in African elephant ivory and
parts and products of other ESA-listed species.
This proposal is also in line with international efforts. At CoP16,
in March 2013, the CITES Parties adopted a revised resolution on trade
in elephant specimens (Resolution Conf. 10.10 (Rev. CoP16)), which,
among other things, urges Parties with a legal domestic ivory market to
ensure that they have in place ``comprehensive internal legislative,
regulatory, enforcement and other measures to regulate the domestic
trade in raw and worked ivory.'' Wittemyer et al. (2014) concluded that
it is obvious that stemming the rate of illegal killing of elephants is
paramount. They call for a global response, including heavy in situ
conservation efforts, enforcement of end-use markets, and curbing
demand to reduce black market prices for ivory and ``alleviate the
unsustainable pressure from illegal killing on wild populations.''
In developing this proposed rule, we have also considered the
provisions already in place for protection of African elephants under
CITES, the AfECA, and the guidance provided in Director's Order No.
210. Provisions for African elephants under CITES and the AfECA can
help to address current threats to the species, but the ESA can reach
activities that are not regulated under these other laws. For each type
of activity and specimen, the available protections provided through
the combination of all applicable laws are analyzed to explain why the
overall proposed regulatory framework is appropriate for the
conservation of this species.
General Provisions
We are proposing to revise the 4(d) rule for the African elephant,
in 50 CFR 17.40(e), so that all of the provisions at 50 CFR 17.31 and
17.32 would apply unless specifically indicated otherwise in the rule.
Any activity that would be prohibited or exempted under 50 CFR 17.31
and any activity that would require authorization under 50 CFR 17.32
would be regulated as indicated in those sections except as provided in
this proposed rule. This legal framework provides far greater
protections for African elephants compared to the current rule, which
regulates only certain import to and export from the United States;
possession, sale, offer for sale, transport, and similar activities
with any African elephant specimen illegally imported into the United
States; and sale or offer for sale of any sport-hunted trophy imported
into the United States in violation of a permit condition. The
protections that would be offered to African elephants through this
proposed rule and reasons each of the measures is appropriate for the
conservation of the species are explained below.
Nothing in this rule would affect other legal requirements
applicable to African elephants and their parts and products under
other laws such as the AfECA and CITES. For example, while an import
into the United States that met all standards as a noncommercial
transshipment under section 10(i) of the ESA would not be a violation
of the ESA, it would remain a violation of the import moratorium under
the AfECA. In addition, any person importing or exporting African
elephants or their parts and products to or from the United States
would need to comply with all applicable CITES requirements beyond what
are described in this proposed rule, as well as the general wildlife
import/export requirements found at 50 CFR part 14 and general
permitting requirements in 50 CFR part 13. These additional
requirements, when applicable, are noted in the text of the rule.
Take of Live Elephants
The current 4(d) rule does not regulate the taking of live African
elephants. Take means to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or attempt to engage in any such
conduct, an ESA-protected species and therefore includes both lethal
and certain non-lethal effects on protected wildlife. Under the
proposed rule, the taking of any live African elephant would be
prohibited within the United States, within the U.S. territorial sea,
or upon the high seas (with the latter two acts possibly occurring
during transport of a live elephant, such as during transport to or
from the United States). Take of endangered or threatened species is
not regulated under the ESA beyond these geographic areas, so this
change to the 4(d) rule would not have any effect on the ability of
U.S. citizens to travel to countries that allow hunting of African
elephants and engage in sport hunting. However, the import of any
associated sport-hunted trophy into the United States would be
regulated as described below. For any African elephant held in
captivity within the United States, take would not include animal
husbandry practices that meet minimum standards under the Animal
Welfare Act (AWA; 7 U.S.C. 2131 et seq.), breeding procedures, and
veterinary care that is not likely to result in injury to the elephant.
(See the definition of ``harass'' at 50 CFR 17.3.) Therefore this new
restriction would not affect routine procedures for care of African
elephants that are held in zoos and similar facilities in the United
States. This prohibition is the same as the prohibition on take of
Asian elephants, which has been in place since the Asian elephant was
listed under the ESA in 1976.
[[Page 45161]]
The proposed rule would help to ensure that elephants held in
captivity receive an appropriate standard of care. Any activities that
qualify as take, including those beyond the standard veterinary care,
breeding procedures, and AWA care standards described in the definition
of ``harass,'' would have to qualify for one of the purposes that allow
for issuance of a threatened species permit under 50 CFR 17.32. While
the taking of live African elephants held in captivity within the
United States or being transported is not a threat to the species,
including a prohibition against take, even for species that are not
native to the United States, is a standard protection for threatened
species and ensures an adequate level of care for wildlife held in
captivity.
Interstate and Foreign Commerce
The current 4(d) rule for the African elephant does not regulate
sale or offer for sale in interstate or foreign commerce or delivery,
receipt, carrying, transport, or shipment in interstate or foreign
commerce in the course of a commercial activity of African elephants
(including live animals, parts and products, and sport-hunted
trophies). The only commercial activities regulated under the current
4(d) rule are possession, sale or offer for sale, and receipt,
delivery, transport, or shipment of African elephants (including parts
and products) that were illegally imported into the United States and
sale or offer for sale of any sport-hunted trophy imported into the
United States in violation of a permit condition. These restrictions
will remain in place through the ESA section 9(c)(1) prohibition on
possession of any CITES specimen that was imported or exported contrary
to the Convention, prohibitions under the Lacey Act (16 U.S.C. 3371 et
seq.), and ESA section 11 penalties for violations of ESA or CITES
permit conditions. We propose to allow continued sale or offer for sale
in interstate or foreign commerce and delivery, receipt, carrying,
transport, or shipment in interstate or foreign commerce in the course
of a commercial activity of live animals and African elephant parts and
products other than ivory and sport-hunted trophies without a
threatened species permit.
The poaching crisis is driven by demand for elephant ivory. There
is no information to indicate that commercial activities involving live
elephants or commercial use of elephant parts and products other than
ivory has had any effect on the rates or patterns of illegal killing of
elephants and the illegal trade in ivory. Live animals are occasionally
removed from the wild and placed in captivity, often from populations
in small management areas where there have been local over-population
issues and consequent negative impacts to habitat. African elephant
parts other than ivory (such as hides) that are commercialized
generally become available when animals are culled for management
purposes, during salvage of animals poached for their ivory, or when
problem animals have to be killed. African elephants are not killed
primarily for their hides or for parts other than ivory. In addition,
the import and export of live African elephants and parts and products
are regulated under CITES and other U.S. law. This includes import into
and export from the United States for both commercial and noncommercial
purposes. It is only commercial activity associated with interstate or
foreign commerce not involving import or export that would not be
regulated. We have no information indicating that such commercial
activity is having any effect on the conservation status of African
elephants. Requiring individuals to obtain a threatened species permit
under 50 CFR 17.32 when the removal of a small number of live elephants
or the incidental harvest of their hides or hair has no negative impact
on the species would provide no meaningful protective measures for
African elephants, especially when activities that also involve import
or export to or from the United States are already regulated under
CITES. For these reasons, we have determined that it is not necessary
to propose restrictions on commercial activities in interstate or
foreign commerce with live African elephants, leather goods, and other
African elephant non-ivory parts and products.
We do, however, propose to prohibit sale or offer for sale of ivory
in interstate or foreign commerce and delivery, receipt, carrying,
transport, or shipment of ivory in interstate or foreign commerce in
the course of a commercial activity, with some exceptions, and to
prohibit the same commercial activities with sport-hunted African
elephant trophies. ``Foreign commerce'' is defined in section 3 the ESA
(16 U.S.C. 1532(9)). ``Commercial activity'' as used in the term ``in
the course of a commercial activity'' is also defined in section 3 the
ESA and means ``all activities of industry and trade, including, but
not limited to, the buying or selling of commodities and activities
conducted for the purpose of facilitating such buying and selling'' (16
U.S.C. 1532(2)). The Service has defined ``industry or trade'' at 50
CFR 17.3 to mean ``the actual or intended transfer of wildlife . . .
from one person to another person in the pursuit of gain or profit.''
The ESA definition of ``commercial activity'' includes an exception for
``exhibitions of commodities by museums or similar cultural or
historical organizations.'' ``Person'' is defined in the ESA to include
corporations, partnerships, trusts, associations, or any other private
entity along with Federal, State, local, and foreign governments, as
well as individuals. Activities that would be prohibited could be
authorized through a threatened species permit under 50 CFR 17.32 for
scientific purposes, enhancement of propagation or survival of the
species, zoological exhibition, educational purposes, or other special
purposes consistent with the purposes of the ESA. The ESA does not
reach sale or offer for sale or activities in the course of a
commercial activity that occur solely within the boundaries of a State
(i.e., intrastate commerce).
There are a number of potential activities involving ivory or
sport-hunted trophies that would not be prohibited under these ESA
standards, provided the activity did not qualify as ``sale'' or ``offer
for sale.'' Under our definition of ``industry or trade,'' commercial
use of threatened specimens does not fall under the prohibition for
``commercial activity'' unless the transaction involves the transfer of
the specimen from one person to another person in the pursuit of gain
or profit. Activities that would involve the movement of ivory or
sport-hunted trophies in interstate or foreign commerce for gain or
profit where there would be no transfer of the item to another person
would not be a violation of this rule. For example, a person who
transported an item containing ivory across State lines for the purpose
of having the item repaired would not fall under the prohibition for
``commercial activity.'' Not every transaction that involves the
exchange of money qualifies as commercial activity under the ESA. In
this case, the repair person would gain financially and the item may
increase in value once repaired, but the payment of money would be to
compensate the repair person for his or her labor and expenses and not
involve gain or profit from the ivory item itself (unless the activity
involved using additional ivory to repair the item, which would not be
allowed). The donation of an item consisting of or containing ivory
also would not be considered commercial activity, even if the donor
qualified for a tax benefit
[[Page 45162]]
where the tax benefit is not income. Exhibitions of ivory items or
sport-hunted trophies involving gain or profit would remain exempt
under the ESA definition of ``commercial activity,'' provided that all
entities involved in the transaction qualified as ``museums or similar
cultural or historical organizations.'' Finally, the exemption
available through section 10(h) of the ESA (16 U.S.C. 1539(h)) would
continue to allow commercialization of qualifying antiques in
interstate and foreign commerce. There are, however, other Federal and
State restrictions that may apply to commercial activities involving
ivory, including ``use after import'' restrictions on certain specimens
that have been imported under CITES (see below).
As explained in the section Need for Regulatory Actions, while
there has long been poaching of African elephants for their ivory and
illegal trade in that ivory, since 2006, there has been an
unprecedented increase in the illegal killing of African elephants,
with estimates exceeding 20,000 per year in recent years. Concurrent
with this increase in illegal killing there has been an alarming
increase in illegal trade in ivory. Recent law enforcement efforts have
demonstrated that the United States plays a role in the illegal trade
and the associated illegal killing. The study by Martin and Stiles
(2008) estimated that as much as one-third of the ivory found in
selected metropolitan areas had been imported into the United States
illegally since the 1989 AfECA moratorium. Stiles estimated, in his
2014 follow-up study, that as much as one half of the ivory for sale in
two California cities during his survey had been imported illegally.
All of this demonstrates the need to impose restrictions on
commercializing elephant ivory within the United States. The proposed
rule would restrict commercial activities with African elephant ivory
consistent with the restrictions in place for endangered species and
those in place for other threatened species, with a narrow exception
for manufactured items containing a small (de minimis) quantity of
ivory. Sale or offer for sale of ivory in interstate or foreign
commerce and delivery, receipt, carrying, transport, or shipment of
ivory in interstate or foreign commerce in the course of a commercial
activity would also remain available by threatened species permit under
50 CFR 17.32, provided the person met all of the requirements of that
section as well as the general permitting requirements under 50 CFR
part 13.
For the same reasons that it is appropriate for the conservation of
African elephants to restrict commercial activities involving ivory in
interstate and foreign commerce, it is appropriate to restrict
commercial activities involving sport-hunted trophies in interstate and
foreign commerce. African elephant trophies contain raw or worked
ivory, and in fact sometimes only the raw or worked ivory from the
animal is imported into the United States as the trophy. Sport hunting
is considered a noncommercial activity and CITES regulation of import
and export of sport-hunted trophies reflects this approach. For
example, the listing of the African elephant in CITES Appendix II for
Botswana, Namibia, South Africa, and Zimbabwe is specifically annotated
to note that trade in hunting trophies is for noncommercial purposes
only. In Resolution Conf. 12.3 (Rev. CoP16), the CITES Parties have
specified that a hunting trophy is an animal that was taken for the
hunter's personal use. In addition, a CITES import permit for an
African elephant trophy hunted in an Appendix I country can only be
issued if the importing government finds that the specimen is not to be
used for primarily commercial purposes. Reflecting these restrictions,
CITES permits for African elephant sport-hunted trophies include a
permit condition that the specimen can be used for noncommercial
purposes only.
Consistent with these and similar restrictions for other CITES
species, in the 2007 revisions to our CITES-implementing regulations,
we clarified that in situations where commercial import would be
prohibited under CITES, an item imported for noncommercial purposes
could not be used for commercial purposes after import into the United
States. Under our CITES regulations, Appendix-I specimens (except those
imported under a CITES exemption document or before the species was
listed in Appendix I), CITES Appendix-II specimens with an annotation
that trade is for noncommercial purposes only, and CITES Appendix-II
specimens without a noncommercial annotation but listed as threatened
under the ESA can only be used within the United States for
noncommercial purposes (see 50 CFR 23.55). This restriction under the
authority of CITES reaches intrastate as well as interstate and foreign
commerce. We propose to prohibit the commercialization of sport-hunted
African elephant trophies in a manner consistent with other legal
standards under CITES, including the commercialization of any
manufactured items that might otherwise qualify under the de minimis
exception discussed below.
Since announcing our intentions to remove or revise the 4(d) rule,
we have received input from the public, including musicians and musical
instrument manufacturers, museums, antique dealers, and others who may
be impacted by these proposed changes. Having considered relevant
information provided by these groups, in this proposed rule we would
allow for continued commercialization of African elephant ivory in
interstate and foreign commerce that is not contributing to the
poaching of elephants and where we believe the risk of illegal trade is
low.
We propose to allow sale and offer for sale of ivory in interstate
or foreign commerce along with delivery, receipt, carrying, transport,
or shipment of ivory in interstate or foreign commerce in the course of
a commercial activity without a threatened species permit for
manufactured items containing de minimis amounts of ivory, provided
they meet the following criteria:
For items located in the United States, the ivory was
imported into the United States prior to January 18, 1990 (the date the
African elephant was listed in CITES Appendix I) or was imported into
the United States under a CITES pre-Convention certificate with no
limitation on its commercial use;
For items located outside the United States, the ivory is
pre-Convention (removed from the wild prior to February 26, 1976 (the
date the African elephant was first listed under CITES));
The ivory is a fixed component or components of a larger
manufactured item and is not, in its current form, the primary source
of value of the item;
The manufactured item is not made wholly or primarily of
ivory;
The total weight of the ivory component or components is
less than 200 grams;
The ivory is not raw; and
The item was manufactured before the effective date of the
final rule for this action.
We have included the phrase ``in its current form'' in the
criterion stating that the ivory is not the primary source of value of
the item, to make clear that we would consider the value added by the
craftsmanship (carving, etc.) that went into the ivory component, not
just the value of the ivory itself. We use the phrase ``wholly or
primarily'' (in the next criterion) as those terms are commonly defined
in the dictionary. We consider ``wholly'' to mean ``entirely, totally,
altogether'' and ``primarily'' to mean ``essentially, mostly, chiefly,
principally.'' We have chosen 200 grams
[[Page 45163]]
as the weight limit because we understand that this is the approximate
maximum weight of the ivory veneer on a piano with a full set of ivory
keys and that this quantity would also cover most other musical
instruments with ivory trim or appointments. We also understand the
200-gram limit would cover a broad range of decorative and utilitarian
objects containing small amounts of ivory (insulators on old tea pots,
decorative trim on baskets, and knife handles, for example).
We have intentionally crafted this exception to allow commercial
activity in a very narrow class of items. While we have given careful
consideration to the types of items containing African elephant ivory
for which we could allow continued commercialization in interstate and
foreign commerce (because we do not believe the trade is contributing
to the poaching of elephants and we believe the risk of illegal trade
is low) we seek comment from the public on the specific criteria we
have proposed to qualify for this de minimis exception. In particular,
we are interested in input on criterion (iii), the ivory is a fixed
component or components of a larger manufactured item and is not in its
current form the primary source of value of the item and criterion (v),
the manufactured item is not made wholly or primarily of ivory. We seek
comment on the impact of not including these criteria in the rule and
whether these criteria are clearly understandable.
Examples of items that we do not expect would qualify for the de
minimis exception include chess sets with ivory chess pieces (both
because we would not consider the pieces to be fixed components of a
larger manufactured item and because the ivory would likely be the
primary source of value of the chess set), an ivory carving on a wooden
base (both because it would likely be primarily made of ivory and the
ivory would likely be the primary source of its value), and ivory
earrings or a pendant with metal fittings (again both because they
would likely be primarily made of ivory and the ivory would likely be
the primary source of its value). For the reasons discussed in the
section Import and export of ivory, other than sport-hunted trophies,
this de minimis exception would not apply to manufactured items
containing ivory that were imported to or exported from the United
States for law enforcement or scientific purposes or to otherwise
qualifying inherited items or items in a household move that were
imported or exported under one of the exceptions in this rule.
Our law enforcement experience over the last 25 years (see the U.S.
involvement in the illegal ivory trade section) has shown that the vast
majority of items in the illegal ivory trade are either raw ivory
(tusks and pieces of tusks) or manufactured pieces (mostly carvings)
that are composed entirely or primarily of ivory. As described earlier,
in November 2013, the Service destroyed six tons of seized ivory that
represented over 25 years of law enforcement efforts to control illegal
ivory trade in the United States. The six tons of contraband ivory did
not include any items that would be covered by this exception. As
demonstrated by the thousands of seized ivory items destroyed in the
``crush,'' ivory traffickers are not manufacturing items with small
amounts of pre-Convention ivory or dealing in such items. Rather,
because the incentive to deal in illegal ivory is economic, the trade
focuses on raw ivory and large pieces of carved ivory from which the
highest profits can be made. Likewise, in the case described earlier
involving the Philadelphia African art dealer, which included the
seizure of approximately one ton of ivory, all of the seized ivory was
in the form of whole ivory carvings and did not include any items that
would qualify under the proposed de minimis exception.
The information we have about the domestic market, including the
surveys conducted by Martin and Stiles and our own investigations,
indicates that trade in the types of manufactured items that would
qualify for this proposed de minimis exception is not contributing to
or driving the illegal ivory trade. Martin and Stiles identify recently
made and presumably illegally imported items as figurines, netsukes,
and jewelry, none of which would qualify under the criteria proposed
for a de minimis exception.
The requirement that the ivory is either pre-Convention (removed
from the wild prior to February 26, 1976) or was imported into the
United States prior to 1990, and the requirement that the item must
have been manufactured before the effective date of a final rule would
make it unlikely that commercialization of ivory under this exception
would directly contribute to the future illegal killing of elephants.
Noting the types of items that make up the illegal trade, and requiring
that the ivory be a fixed component of a larger manufactured item, that
the ivory is not raw, that it is not the primary source of value of the
item, that the total weight of the ivory is less than 200 grams, and
that the manufactured item is not made wholly or primarily of ivory
would minimize the possibility of the ivory contributing to either
global or U.S. illegal ivory markets or that the de minimis exception
could be exploited as a cover for the illegal trade.
These changes will allow us to appropriately regulate the U.S.
domestic market in ivory as well as U.S. participation in global
markets for ivory and achieve our goal of conserving the African
elephant, while allowing limited continued trade that is not
contributing to the poaching of elephants. Improved domestic controls
will make it more difficult to launder illegal elephant ivory through
U.S. markets, which we believe will ultimately contribute to a
reduction in the illegal killing of African elephants.
Since announcing our intention to revise the 4(d) rule for the
African elephant and prohibit sale and offer for sale of African
elephant ivory in interstate commerce, we have heard from a number of
representatives of the U.S. museum community. They have expressed their
concern about how prohibitions on interstate commerce will impact their
ability to acquire items for museum collections. We recognize that
museums can play a unique role in society by curating objects that are
of historical and cultural significance. We are considering including
an exception to the prohibitions on interstate commerce for museums,
either through this rulemaking process or through a separate rulemaking
under the ESA. We seek comment from the public on this issue.
Additionally, we seek comment on how to best define museums in this
regard, given the diverse interests that they serve.
Import and Export, Other Than Ivory and Sport-Hunted Trophies
Under the current 4(d) rule, African elephants and African elephant
parts and products other than sport-hunted trophies and ivory (e.g.,
live elephants, including those with tusks, and leather products) may
be imported into or exported from the United States without a
threatened species permit, provided all permit requirements of 50 CFR
parts 13 (general permitting regulations) and 23 (CITES regulations)
have been met. This would not change with the proposed revisions to the
4(d) rule. We would, however, add a clarification that the requirements
at 50 CFR part 14 (general import, export, and transport regulations)
must also be met.
As noted earlier, the import into the United States of live
elephants, including those with tusks, is not regulated under the
AfECA. In section 4202(2) (16 U.S.C. 4202(2)) of the statute, Congress
found that it is the large illegal trade in ivory that is the
[[Page 45164]]
major cause of decline of the species and threatens its existence.
Although live elephants may have tusks, there is no information
indicating that the limited import of live elephants for conservation
or zoological exhibition purposes has ever negatively affected the
species. Live African elephants are only occasionally imported into the
United States (most live elephants held in captivity in the United
States are Asian elephants). During the 5 years from 2009 to 2013,
there were eight live African elephants imported into the United States
(four in 2011 and four in 2013), all for zoological or educational
purposes. Three of these animals were pre-Convention (removed from the
wild prior to 1976); the other five were either captive born or captive
bred. In addition, the AfECA's focus on regulating ivory primarily
through moratoria on the import of raw and worked ivory (not elephants
themselves) indicates Congress' intent to regulate ivory as a
commodity, not ivory that is attached to a live elephant and therefore
cannot be commercialized separate from the elephant itself. Likewise,
the AfECA prohibitions all address the import or export of raw or
worked ``ivory,'' not elephants. Finally, the definition of ``raw
ivory'' also indicates that Congress intended the term not to apply to
live elephants. The term raw ivory in section 4244(10) (16 U.S.C.
4244(10)) means any ``tusk, and any piece thereof, the surface of
which, polished or unpolished, is unaltered or minimally carved.'' The
references to pieces of tusks and the polishing or carving of tusks
when read in the context of the definition and application of the term
``raw ivory'' in the statute indicate that the definition is speaking
of tusks that are no longer attached to a live animal.
When establishing regulations for threatened species under the ESA,
the Service has generally adopted restrictions on the import and export
of live as well as dead animals and their parts and products, either
through a 4(d) rule or through the provisions of 50 CFR 17.31. In this
case, import and export of both live and dead African elephants and all
parts and products are already carefully regulated under CITES. Under
CITES and the U.S. regulations that implement CITES at 50 CFR part 23,
the United States regulates and monitors all commercial and
noncommercial trade in African elephants and any parts and products
that are imported into or exported from the country. All African
elephant populations are protected under CITES, with most populations
listed in Appendix I and only four populations (those in Botswana,
Namibia, South Africa, and Zimbabwe) listed in Appendix II. Import into
and export from the United States of African elephant specimens will
continue to require CITES documentation.
Under CITES, for nearly all live or dead elephants and elephant
parts or products, including those from Appendix II populations, the
exporting country must issue an export permit that is supported by
findings that the specimen was legally acquired under national laws,
that the export will not be detrimental to the survival of the species,
and, for live animals, that the elephant will be shipped in a manner
that minimizes the risk of injury, damage to health, or cruel
treatment. The CITES export permit must be presented upon export and
must also be presented to U.S. officials upon import into the United
States. For nearly all Appendix-I African elephant specimens, a CITES
import permit would also have to be issued by the Service after finding
that the import will be for purposes that are not detrimental to the
survival of the species, that the specimen will not be used for
primarily commercial purposes, and, for a live animal, that the
proposed recipient is suitably equipped to house and care for the
elephant. Any later re-export of African elephant specimens would
require additional CITES documents.
Some limited exceptions to these permitting requirements exist.
Consistent with an exception in the Convention, the Service provides an
exemption from permitting requirements for personal and household
effects, but only for dead specimens and not for most Appendix-I
specimens. Personal and household effects must be personally owned for
noncommercial purposes, and the quantity imported or exported must be
necessary or appropriate for the nature of the trip or household use.
The exemption is extremely limited for items containing African
elephant ivory (see 50 CFR 23.15(f)). Not all CITES countries have
adopted the personal and household effects exemption, so individuals
who might cross an international border with an African elephant item
and want to take advantage of this exemption would need to check with
the Service and any country of transit in advance for documentation
requirements. There is also an exemption for pre-Convention animals and
parts or products, but a person who wants to transport an item under
this exemption must obtain and present to government officials upon
export and import a CITES pre-Convention certificate that verifies that
the specimen was acquired before the Convention applied to it.
In addition to the requirements under CITES, individuals who import
or export wildlife and wildlife products into or from the United States
must file wildlife declaration forms with the Service's Office of Law
Enforcement and must use designated ports. Individuals who are in the
business of importing and exporting wildlife and wildlife products must
be licensed by the Service. These requirements allow us to monitor the
species and quantity of wildlife that are imported into and exported
from the United States and ensure that such trade is legal.
The need to address the increase in illegal killing and illegal
trade of African elephants is linked to the economic value of and
international market in ivory. There is no information indicating that
the conservation status and management needs of the species are linked
to the occasional import of live elephants into the United States for
captive propagation programs or public education and display, or to the
market in hides and other non-ivory parts or products. The Service
monitors U.S. imports and exports of elephant specimens through
wildlife declaration forms, and all CITES Parties are required to
submit annual reports on trade in CITES species and the number and
types of CITES permits and certificates issued each year. This
information verifies that import and export of live African elephants
and parts or products other than ivory and sport-hunted trophies is
small and does not affect the conservation of the species. There is no
evidence of an illegal market in live elephants or parts and products
other than ivory.
In addition, as noted above, import and export of African elephant
specimens would continue to be strictly regulated through the
documentation procedures and required findings under CITES.
Particularly relevant to the major threats facing African elephants,
these CITES documents are not issued unless the importing or exporting
countries find that the import or export would not be detrimental to
the survival of the species, that the live animal or part or product
was legally acquired, and that the specimen will not be used for
primarily commercial purposes. Requiring individuals to obtain an ESA
threatened species permit in addition to the required CITES documents
prior to import or export of live animals and parts or products other
than ivory and trophies would add no meaningful protection for the
species and would be an unnecessary overlay of authorization on top of
existing documentation that
[[Page 45165]]
already ensures that the import or export is legal and not detrimental
to the survival of the species. Therefore, because the import and
export of live African elephants and parts or products other than ivory
and sport-hunted trophies must comply with the strict provisions of
CITES and other U.S. import/export requirements and because the import
or export of such animals and parts or products poses no risk to the
species, we find that authorization under the ESA to import or export
African elephant specimens other than sport-hunted trophies or ivory
remains neither necessary nor appropriate provided that all import and
export requirements under CITES and other U.S. laws have been met.
Import and Export of Sport-Hunted Trophies
As noted earlier, the ESA does not prohibit U.S. hunters from
traveling to other countries and taking threatened species, but
authorization may be required under the ESA to import the sport-hunted
trophy into the United States. We are proposing to limit the number of
sport-hunted African elephant trophies that may be imported into the
United States to two per hunter per year. This action is intended to
address a small number of circumstances in which U.S. hunters have
participated in legal elephant culling operations and imported, as
sport-hunted trophies, a large number of elephant tusks from animals
taken as part of the cull. We propose to disallow this activity, which
has resulted, in some cases, in the import of commercial quantities of
ivory as sport-hunted trophies. Based on our import records, we expect
this proposed change to impact fewer than 10 hunters per year.
This proposed change is consistent with the purposes of the ESA and
CITES. Sport hunting is meant to be a personal, noncommercial activity.
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. Given
the current conservation concerns with escalating illegal trade in
ivory and the associated levels of illegal killing to supply that
trade, it is consistent with the purposes of the ESA and other
provisions in this proposed rule regulating commercialization of ivory
to more closely regulate activities that have resulted in the import of
large quantities of raw ivory into the United States.
This provision is also consistent with Congress' intent under the
AfECA. Congress included in the AfECA an exemption from the import
moratorium for sport-hunted trophies legally taken in an elephant range
country, but that was on the basis of finding that sport hunting does
not directly or indirectly contribute to the illegal trade in African
elephant ivory. The escalating illegal trade of ivory is currently
driving unprecedented increases in the illegal killing of elephants. We
therefore find it is necessary to use our authority under section 4(d)
of the ESA to ensure that ivory imported into the United States as
sport-hunted trophies is in fact the result of sport hunting and is not
commercialized. Section 4241 of the AfECA (16 U.S.C. 4241) expressly
states that the Service's authority under the AfECA is in addition to
and does not affect the Service's legal authority under the ESA, which
includes our legal authority under section 4(d). The AfECA therefore
does not preclude us from using our authority under the ESA to limit
the number of African elephant trophies imported by an individual
hunter each year to appropriate levels. For certain species, the
parties to CITES have set limits on the number of trophies that any one
hunter may import in a calendar year, which currently for leopards is
no more than two, for markhor is no more than one, and for black
rhinoceros is no more than one. See 50 CFR 23.74(d). Taking into
consideration these decisions by the parties to CITES, we similarly
propose to set the limit at two African elephants per hunter per year.
We are also proposing to require issuance of a threatened species
permit under 50 CFR 17.32 for import of all African elephant sport-
hunted trophies. The current 4(d) rule provides conditions under which
sport-hunted African elephant trophies may be imported into the United
States, one of which is that the Service has made a determination that
the killing of the trophy animal would enhance the survival of the
species.
For elephant trophies taken from CITES Appendix-I populations, we
issue a combined CITES/ESA import permit and the ESA finding is
communicated through that permit. Under the current 4(d) rule, we do
not issue an import permit for trophies from Appendix-II populations
and the ESA finding is communicated through public notification,
including in the Federal Register.
For the import of sport-hunted trophies from Appendix-II
populations, revision of the 4(d) rule would mean that the enhancement
finding required under the current 4(d) rule would be communicated
through the threatened species permitting process under 50 CFR 17.32.
This change in procedure would not result in any significant burden to
U.S. hunters and would not affect whether future hunters would be able
to obtain trophy import permits. The standards for making enhancement
findings for each African elephant range country under the current 4(d)
rule are the same as the standards for making findings for import
permits for sport-hunted trophies of other species classified as
threatened, where such findings are required. The standards for making
enhancement findings under the current 4(d) rule are also the same as
the standards that would be used in the future for making enhancement
findings for African elephant trophy imports through the threatened
species permit process. Permits have always been required for the
import of African elephant trophies from any Appendix-I country, so it
is only trophies from the four Appendix-II countries that would now
also require import authorization through a threatened species permit.
Hunters would benefit from the consistency of having all African
elephant import authorizations provided through the permitting process
(we expect it would reduce confusion regarding the process for
obtaining import authorization, depending on the country) and benefit
from a process that would allow them to submit relevant information
through the permit application. Hunters seeking authorization to import
a trophy from an Appendix-II population would also now be able to take
advantage of the process for requesting reconsideration and appeal of a
permit denial under 50 CFR 13.29. The Service would benefit from having
a consistent process for authorizing ESA importation of African
elephant sport-hunted trophies, as well as having the ability to obtain
current information from hunters that is relevant to making the
enhancement findings.
As provided in section 9(c)(2) (16 U.S.C. 1538(c)(2)) and our
regulations at 50 CFR 17.8, the ESA provides a limited exemption for
the import of some threatened species, which is frequently used by
hunters to import sport-hunted trophies. 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 rebutted, however, when information
shows that
[[Page 45166]]
the species' conservation and survival would benefit from the granting
of ESA authorization prior to import. The Service determined that this
was the case in 1997 and 2000, when the four populations of African
elephants were transferred from CITES Appendix I to CITES Appendix II
and we retained the requirement for ESA enhancement findings prior to
the import of sport-hunted trophies. We amended the African elephant
4(d) rule in June of 2014, again maintaining the requirement for an ESA
enhancement finding prior to allowing the import of African elephant
sport-hunted trophies.
Our proposal to require issuance of threatened species enhancement
permits under 50 CFR 17.32 for the import of any African elephant
hunting trophy would change the procedure for issuing ESA authorization
but not change the requirement that an enhancement finding be made
prior to import into the United States. As described in the Need for
Regulatory Actions section, the overall conservation status of African
elephants has deteriorated in the years following the transfer of the
four populations of African elephants to CITES Appendix II. Extensive
and well-documented information indicates that the escalating rate of
illegal killing of African elephants is driven by the illegal markets
for elephant ivory. This information affirms the need to continue
making enhancement findings prior to allowing the import of sport-
hunted trophies that consist entirely or in part of the ivory tusks
from the elephant. Authorizing importation of all sport-hunted trophies
through threatened species enhancement permits would allow us to more
carefully evaluate trophy imports in accordance with legal standards
and the conservation needs of the species. For example, the issuance of
threatened species enhancement permits under 50 CFR 17.32 would mean
that the standards under 50 CFR part 13 would also be in effect, such
as the requirement that an applicant submit complete and accurate
information during the application process and the ability of the
Service to deny permits in situations where the applicant has been
assessed a civil or criminal penalty under certain circumstances,
failed to disclose material information, or made false statements.
Therefore, we have determined that the additional safeguard of
requiring the issuance of threatened species enhancement permits under
50 CFR 17.32 prior to the import of sport-hunted trophies is warranted.
In addition, the 4(d) rule would incorporate certain restrictions
under the AfECA on the import and export of sport-hunted trophies. We
do not have separate AfECA regulations and consider that including
restrictions in the 4(d) rule that have their source in the AfECA would
provide hunters and other members of the public easy access to
information on all requirements that apply to activities with African
elephant sport-hunted trophies. All of these provisions are also
appropriate conservation measures for the species under the ESA that
ensure that hunting of African elephants by U.S. citizens is
sustainable and legal under the laws of the range country and that any
ivory associated with the trophy does not contribute to the illegal
killing of elephants. Adopting these AfECA provisions as appropriate
conservation measures for the species under section 4(d) of the ESA
would also make a violation of relevant provisions of the AfECA a
violation of the ESA, thus increasing protections for African elephants
when a person violates the AfECA.
The AfECA provides for the import of sport-hunted African elephant
trophies but only if the trophy was legally taken in an African
elephant range country that has declared an ivory export quota to the
CITES Secretariat. These requirements have been incorporated into the
proposed 4(d) rule. Also, the AfECA provides an exemption from any
moratorium for the import of African elephant sport-hunted trophies,
but the exemption applies to import only, not export. The export of all
raw ivory is prohibited under section 4223(2) of the AfECA (16 U.S.C.
4223(2)). We propose to incorporate into the 4(d) rule the AfECA
prohibition on the export of raw ivory. Export of raw ivory would not
be allowed even under an ESA threatened species permit because the
AfECA prohibition would still stand; similarly, export of raw ivory
that qualified as an antique under the ESA, while not regulated under
the proposed 4(d) rule, would still be prohibited under the AfECA. We
have also proposed minor revisions to the 4(d) rule to clarify that
general wildlife import requirements under 50 CFR part 14 also apply to
the import of sport-hunted trophies and to more closely align import
requirements with the recommendations in CITES Resolution Conf. 10.10
(Rev. CoP16), Trade in elephant specimens.
The revised 4(d) rule would also allow the noncommercial export of
worked ivory that was imported as part of a sport-hunted trophy
provided it meets one of the exceptions we have proposed for scientific
or law enforcement purposes or as part of a musical instrument,
traveling exhibition, or household move or inheritance. Worked ivory
that had been imported as a sport-hunted trophy could also be exported
if it qualifies as an ESA antique.
Import and Export of Ivory, Other Than Sport-Hunted Trophies
Under the current 4(d) rule, import of raw or worked ivory other
than sport-hunted trophies is allowed only if it is a bona fide antique
greater than 100 years old or it is being imported following export
from the United States after being registered with the Service. Under
the terms of the 1989 AfECA moratorium, the import of raw and worked
African elephant ivory, other than ivory from legally taken sport-
hunted trophies, is prohibited from both African elephant range
countries and intermediary countries (i.e., countries that export ivory
that did not originate in the country).
Under the proposed revisions to the 4(d) rule, import of ivory
other than sport-hunted trophies would be prohibited, with limited,
narrow exceptions including: the import of raw ivory by a government
agency for law enforcement purposes or for a genuine scientific purpose
that will contribute to the conservation of the African elephant; and
the import of worked ivory under these same exceptions for law
enforcement or scientific purposes that will contribute to the
conservation of the species, or as part of a musical instrument, an
item in a traveling exhibition, or as part of a household move or
inheritance. The export of raw ivory would be prohibited under the
proposed revisions to the 4(d) rule and the export of worked ivory
would be limited to those items that qualify for the exceptions
described above. Section 4(d) of the ESA does not apply to items that
qualify as antiques and therefore these proposed prohibitions on import
and export of ivory do not apply to ESA antiques. However, as noted
previously, the prohibitions on import and export of ivory under the
AfECA would still apply, regardless of the age of the item. The
proposed revisions are consistent with the 1989 AfECA moratorium, and
are generally consistent with the Service's Director's Order No. 210,
as amended on May 15, 2014. We have determined that these provisions
are appropriate under the ESA for the conservation of the African
elephant.
Restrictions on import and export are appropriate under both the
AfECA and the ESA because strict regulation of the import and export of
ivory are necessary to prevent U.S. citizens and others
[[Page 45167]]
subject to the jurisdiction of the United States from engaging in
activities that could contribute to the illegal killing of elephants.
Nonetheless, situations where not allowing the activity could actually
be detrimental to the conservation of the species, or limited
circumstances where careful controls would be in place to make it
likely that the activity will not contribute to illegal trade in ivory
or the killing of elephants for their ivory, can be allowed. Adopting
the AfECA provisions as appropriate conservation measures for the
species under section 4(d) of the ESA would make a violation of the
AfECA a violation of the ESA, thus increasing protections for African
elephants when a person violates the AfECA. Finally, because there are
no AfECA regulations in the Code of Federal Regulations, the public
would benefit from having all legal requirements relating to the import
and export of African elephant ivory located in one place through the
4(d) rule.
On June 9, 1989, the Service established the current moratorium on
the importation of both raw and worked ivory (other than that from
sport-hunted trophies) after finding that most ivory was traded outside
of the CITES Ivory Trade Control System that existed at that time and
that illegal and excessive taking of elephants was taking place at
unsustainable levels (54 FR 24758). African elephant range countries
were unable to effectively control taking of elephants and intermediary
countries could not ensure that all ivory in trade originated from
legal sources. Specifically, the Service found that most ivory range
countries had such low elephant populations that the countries had
determined that no sustainable harvest was possible and had requested
no ivory export quota for that year; that there was likely no
sustainable harvest of elephants throughout most of Africa, even for
those countries that had export quotas, due to declining populations;
and that most African elephant range countries had significant poaching
problems. For intermediary countries, the Service determined that all
major intermediary countries that were parties to CITES at that time
had engaged in import of raw ivory from other intermediary countries
(alone a criterion for establishment of a moratorium under the AfECA)
and that due to the virtual impossibility of distinguishing legal from
illegal ivory, it was no longer possible for any intermediary country
to ensure that it was not importing ivory from a range country in
violation of the laws of that country.
In recent years, many of the conditions that supported imposing the
moratorium have continued or even worsened. In particular, recent
information shows that for elephant range countries, the taking of
elephants is not effectively controlled and the amounts of raw ivory
that are being illegally exported from these countries are undermining
the conservation of elephants. For intermediary countries, recent
information on the scope and extent of illegal ivory trade shows that
these countries are importing (through illegal trade) raw or worked
ivory that originates in range countries in violation of the laws of
the range countries. However, some actions in the United States, in
other countries, and through CITES, have been taken to strengthen
controls on poaching and illegal trade. In January 1990, all
populations of African elephants were transferred from CITES Appendix
II to Appendix I, which generally ended 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,
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 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. Since
then, the CITES Parties have revised the Appendix-II listing annotation
three times. The current annotation, in place since 2007, covers the
Appendix-II populations of Botswana, Namibia, South Africa, and
Zimbabwe and allows export of: Sport-hunted trophies for noncommercial
purposes; live animals to appropriate and acceptable destinations;
hides; hair; certain ivory carvings from Namibia and Zimbabwe for
noncommercial purposes; and a one-time export of specific quantities of
raw ivory, once certain conditions had been met (this export, to China
and Japan, took place in 2009). As in previous versions of the
annotation, all other African elephant specimens from these four
populations are deemed to be specimens of species included in Appendix
I and the trade in them is regulated accordingly.
Most recently, the Service determined in April 2014 that import of
sport-hunted trophies from Tanzania and Zimbabwe could not be allowed
until new information is received, because the killing of African
elephants for trophies does not meet the enhancement standard under the
current 4(d) rule. The Service understands that Botswana has closed its
sport-hunting program on government land for 2014 (although hunting on
private concessions continues) and is not currently allowing exports.
South Africa and Namibia continue to have well-managed elephant
conservation programs; the Service's findings remain in place that the
killing of trophy animals from these countries for import into the
United States enhances the survival of the species.
All of this information, along with the recent levels of illegal
killing and illegal trade as described in the section Need for
Regulatory Actions, indicates that the circumstances facing African
elephants and involving ivory in both range countries and intermediary
countries support adoption of these restrictions for the species under
the ESA. The threats facing the species call for all appropriate
actions to restrict the import of African elephant ivory where that
import is likely to contribute to commercializing elephant ivory. We
believe that it is appropriate to allow certain limited exceptions to
these import restrictions under the 4(d) rule, however, where import
either would be beneficial to law enforcement or the conservation of
the species, or where import of certain worked ivory meets strict
criteria and is regulated in such a manner that it does not contribute
to the illegal trade in ivory and poses no risk to elephant
populations.
We propose to allow the import of raw or worked ivory into the
United States or the export of worked ivory from the United States when
it would be directly beneficial for law enforcement efforts. Under this
exception, raw or worked ivory could be imported into the United States
and worked ivory could be exported from the United States only by an
employee or agent of a Federal, State, or tribal government agency for
law enforcement purposes. Specimens from protected species are
frequently used as evidence to prosecute violations of law in the
United States, and this may require the import of ivory from other
countries. Likewise, there may be situations where worked ivory would
[[Page 45168]]
need to be exported from the United States by a Federal, State, or
tribal agency to assist with a law enforcement action in another
country. Not having this exception would hinder the Service's ability
to enforce Federal laws such as the AfECA, the ESA, and the Lacey Act
that protect African elephants and other wildlife. It could also hinder
other Federal agencies, States, and tribes from effective enforcement
of their laws. Not including this exception would be contrary to the
AfECA's policy to assist in the conservation and protection of the
African elephant by supporting the conservation programs of African
countries and the CITES Secretariat, which represents the interests of
all parties to CITES including the United States. The limitation that
ivory could only be imported or exported by an employee or agent of a
Federal, State, or tribal government would ensure that the exception is
invoked only in appropriate circumstances. Any ivory imported or
exported under this exception would be strictly for noncommercial law
enforcement purposes, and therefore could not subsequently be sold or
offered for sale in interstate or foreign commerce or delivered,
received, carried, transported, or shipped in interstate or foreign
commerce in the course of a commercial activity, even if it qualified
under the de minimis exception. The limited applicability of this
exception to noncommercial import or export by government officials for
law enforcement purposes indicates that no ESA threatened species
permit should be required. Such a permit would provide no protection
for the species and would inhibit law enforcement officials' ability to
respond quickly to enforcement needs involving the import or export of
African elephant ivory.
We also propose to allow the import or export of ivory when it
would contribute to the conservation of African elephants. Under this
exception, either raw or worked African elephant ivory could be
imported into the United States and worked ivory could be exported from
the United States for genuine scientific purposes that would benefit
elephant conservation. For example, researchers in the United States
have developed techniques to determine the origin of ivory, and the
import of ivory samples is essential to this work. In such instances,
prohibition of import would hinder science that could assist in
protecting the species from poaching or illegal trade in ivory, or
could result in valuable information that addresses other threats to
the species. Similarly, the export of worked African elephant ivory
could assist both U.S. scientists that are located outside the United
States and scientists from other countries in their work to conserve
the species. We believe that allowing under the 4(d) rule import and
export of ivory in these circumstances is necessary and appropriate for
the conservation of the African elephant; it is also consistent with
the AfECA's purpose to ``perpetuate healthy populations of African
elephants.'' Any ivory imported or exported under this exception would
be strictly for genuine scientific purposes, and could not subsequently
be sold or offered for sale in interstate or foreign commerce or
delivered, received, carried, transported, or shipped in interstate or
foreign commerce in the course of a commercial activity, even if it
qualified under the de minimis exception. The requirement to obtain a
threatened species permit under 50 CFR 17.32 prior to import or export
would ensure that the activity meets the standard of being for a
genuine scientific purpose and that the science will actually
contribute to the conservation of African elephants.
We are also proposing to allow the noncommercial import or export
of carefully regulated items containing worked elephant ivory that are
appropriate exceptions to the import moratorium and appropriate
provisions under the 4(d) rule. None of these exceptions allows the
import or export of raw ivory. The exceptions are for qualifying
musical instruments, items in certain travelling exhibitions, and
qualifying items that are part of an inheritance or household move.
Under all three of these exceptions, the importer or exporter would
need to show that the African elephant ivory in the item was legally
acquired and removed from the wild prior to February 26, 1976 (the date
the African elephant was first listed under CITES). This does not
necessarily mean that the current owner of an item containing ivory, a
musical instrument, for example, acquired the instrument or the ivory
in the instrument prior to February 1976. It means that there is
sufficient information to show that the ivory was harvested (taken from
the wild) prior to February 26, 1976, even though the instrument may
not have been manufactured until after that date. It also means that
there is sufficient information to show that the ivory was harvested in
compliance with all applicable laws of the range country and that any
subsequent import and export of the ivory and the instrument containing
the ivory was legal under CITES and other applicable laws
(understanding that the instrument may have changed hands many times
before being acquired by the current owner).
These requirements would ensure that any item imported or exported
under one of these three exceptions originated from elephants that were
legally taken prior to the date that African elephants were first
protected under CITES, the ESA, and the AfECA and therefore before
contemporary laws and programs were developed to address current
threats to the species. The ivory would have originated from elephants
taken prior to development of the conservation programs of African
countries and the CITES Secretariat referenced in section 4203 of the
AfECA that the AfECA was enacted to support. This would also mean that
any ivory imported or exported under the exceptions originated before
U.S. citizens and other individuals subject to the jurisdiction of the
United States were first regulated under these laws. The showing that
the ivory was legally acquired would ensure that the ivory contained in
the item was not previously part of the global market in illegal ivory.
Thus these requirements would minimize the chances that the worked
ivory in items imported or exported under these three exceptions
contributed to the killing of elephants that the AfECA and listing
under the ESA and CITES were designed to address or that the owner or
others who may have owned the ivory played a role in the taking of the
elephant in contravention of U.S. laws to protect the species.
Under all three of these exceptions, the importer or exporter would
have to obtain the appropriate CITES document showing that the import
or export is in full compliance with CITES requirements. The
requirement to obtain appropriate CITES documents would ensure that
each item imported or exported under one of these three exceptions
qualifies under CITES' strict standards and that all such import and
export will be monitored and reported to the CITES Secretariat in each
Party's annual report. Any musical instrument or item in a traveling
exhibition would also have to be securely marked or uniquely identified
so that authorities at U.S. and foreign ports can verify that the item
presented for import or export is actually the specimen for which the
CITES document was issued. While items imported or exported under a
CITES pre-Convention certificate (as part of a household move or
inheritance) do not specifically need to be marked or identified, port
authorities would verify that the description and quantity of any items
presented for import or export match what is
[[Page 45169]]
described in the CITES document. All of this would ensure that each
import or export of items under these exceptions is verified and
monitored, which ensures that all such import and export remains legal.
A CITES musical instrument certificate or equivalent CITES document
would be issued for the import and export of personally owned
instruments containing African elephant ivory to facilitate the
frequent, noncommercial, cross-border movement of instruments that are
being used for noncommercial purposes. Noncommercial purposes could
include personal use, performance, display, or competition where the
musician is financially compensated for his or her participation, but
does not include financial gain through activities such as sale or
lease of the instrument itself. Under the terms for obtaining a CITES
musical instrument certificate (contained in CITES Resolution Conf.
16.8, Frequent cross-border non-commercial movements of musical
instruments), the individual seeking a certificate would need to
demonstrate that the CITES specimens contained in the instrument, in
this case African elephant ivory, were acquired (removed from the wild)
prior to February 26, 1976 (the date that African elephants were first
listed under CITES). In addition, the country issuing the certificate
would need to find that the elephant ivory used to manufacture the
instrument was legally acquired under CITES. The issuing country would
also include as a condition on the certificate a statement that the
ivory covered by the certificate is for noncommercial use only and may
not be sold, traded, or otherwise disposed of outside the certificate
holder's country of usual residence. This restriction would also be
included as a prohibition in the 4(d) rule, although musical
instruments containing ivory that are owned by individuals whose
residence is the United States could be sold or offered for sale in
interstate or foreign commerce or delivered, received, carried,
transported, or shipped in interstate or foreign commerce in the course
of a commercial activity once the instrument was returned to the United
States if the instrument qualified under the de minimis exception.
Musical instrument certificates are used like passports. Upon each
export and import, the original certificate is presented to the
appropriate border control officer, who inspects the certificate,
verifies that the certificate corresponds to the instrument presented
for import, and validates the certificate to document the history of
each cross-border movement. All of these requirements would limit use
of the exception to personally owned musical instruments containing
legally acquired, pre-Convention ivory, and ensure that any instrument
entering the United States would be used for noncommercial purposes
only, and that an instrument would not be commercialized while
traveling under the authorization of the CITES certificate. These
requirements provide adequate assurances that any import or export of
such instruments would not contribute to either the illegal trade in
elephant ivory or the illegal killing of elephants.
A CITES traveling exhibition certificate would be issued for the
import and export of items consisting of or containing African elephant
ivory to facilitate the frequent cross-border movement of items that
are part of an orchestra, museum, or similar exhibition registered in
the country in which the traveling exhibition is based. Under the terms
for obtaining the CITES certificate (contained in CITES Resolution 12.3
(Rev. CoP16), Permits and certificates and in our regulations at 50 CFR
23.49), the ivory in the traveling exhibition must be pre-Convention
ivory (i.e., it was acquired prior to February 26, 1976, the date that
African elephants were first listed under CITES). Similar to the
musical instrument certificate, the country issuing the certificate
would need to find that any item containing elephant ivory was legally
acquired under CITES and would be returned to the country in which the
exhibition is based. The country issuing the certificate would also
include the condition that the ivory covered by the certificate may not
be sold or otherwise transferred in any country other than the country
in which the exhibition is based and registered. This restriction would
also be included as a prohibition in the 4(d) rule, although exhibition
items containing ivory that are owned by persons who are based in the
United States could be sold or offered for sale in interstate or
foreign commerce or delivered, received, carried, transported, or
shipped in interstate or foreign commerce in the course of a commercial
activity if the item qualified under the de minimis exception and the
exhibition was back in the United States. Like musical instrument
certificates, traveling exhibition certificates are used like
passports. Upon each import or export, the original certificate is
presented to the appropriate border control officer, who inspects the
certificate, verifies that the certificate corresponds to the item
presented for import, and validates the certificate to document the
history of each cross-border movement. Similar to the strict regulation
of musical instruments, these requirements would limit use of the
exception to items consisting of or containing African elephant ivory
legally acquired prior to February 26, 1976, and ensure that the item
would not be commercialized while outside the country in which the
exhibition is based while traveling under the authorization of the
CITES certificate. These requirements provide adequate assurances that
any import or export of these items would not contribute to either the
illegal trade in elephant ivory or the illegal killing of elephants.
Items imported or exported as part of an inheritance or a household
move under the final exception would need to be for personal use only
and accompanied by a valid CITES pre-Convention certificate. To qualify
for a pre-Convention certificate, the importer or exporter of an item
containing African elephant ivory would need to present sufficient
information to show that the ivory was removed from the wild prior to
February 26, 1976. There must also be sufficient information to show
that the ivory was harvested in compliance with all applicable laws of
the range country and that any subsequent import and export of the
ivory and the instrument containing the ivory was legal under CITES and
other applicable laws. For any item imported or exported as an
inheritance, the importer or exporter would also need to show that the
item was received through an inheritance. For any item imported or
exported as part of a household move, the importer or exporter would
need to show that they own the item, that it was legally acquired, and
that they are moving it for personal use. Any such items would need to
be imported or exported within 1 year of changing residence from one
country to another and the shipment would need to contain only ivory
items purchased, inherited, or otherwise acquired prior to the change
in residence. Finally, the type and quantity of ivory items imported or
exported under this exception would need to be appropriate for a
household move. Because any ivory imported or exported under this
exception would be solely for personal use, any such ivory could not
subsequently be sold or offered for sale in interstate or foreign
commerce or delivered, received, carried, transported, or shipped in
interstate or foreign commerce in the course of a commercial activity,
even if
[[Page 45170]]
it qualified under the de minimis exception.
All of these requirements would help to ensure that any imports or
exports under these proposed exceptions did not contribute to past
poaching and smuggling, did not contribute to the recent increase in
illegal killing of elephants and illegal trade of ivory, and would be
in compliance with AfECA requirements. In addition, the requirements
that items under most of the exceptions must be imported or exported
for personal or noncommercial use only, the limits on sale or other
disposal of musical instruments and exhibition items while the item is
traveling under the CITES certificate, the requirement that inherited
items must be documented as acquired through an inheritance and not
purchase, the requirement that household move items are limited to the
number and type that would reasonably be expected for a person's move
of their household, the requirement that household move items must be
imported or exported within 1 year of a documented change of residence,
and the prohibition on commercialization of inherited or household move
items even if they qualify under the de minimis exception would
minimize the chances of these exceptions being used as a means to
commercialize ivory.
Because of the strict requirements that must be met to be eligible
for import or export of any item under these three exceptions, we are
proposing that no additional threatened species permit would be
required under 50 CFR 17.32. The requirements to obtain the relevant
CITES document, the findings that must be made before the CITES
document can be issued, and the requirement to present the item along
with all required CITES and general wildlife import/export documents to
Federal officials upon import or export would ensure that each import
or export is legal and adequately monitored. Presentation of the items
and documents upon import or export would also provide Federal
officials the opportunity to make sure that all other requirements have
been met. Requiring individuals to obtain an ESA threatened species
permit in addition to the required CITES documents prior to import or
export of items under these limited exceptions would be an unnecessary
overlay of documents on top of existing CITES documentation that
ensures that such import or export is not contributing to the illegal
killing of elephants.
All of these exceptions are identical or similar to the exceptions
to the AfECA import moratorium that were provided as a matter of law
enforcement discretion through Director's Order No. 210, as amended on
May 15, 2014. The only substantive change is that the Director's Order
contained an additional standard that any musical instrument, item in a
traveling exhibition, item in a household move, or inherited item
containing ivory could not be imported if it had been transferred from
one person to another person for financial gain or profit since
February 25, 2014 (the date of the original Director's Order). We have
determined that this restriction is not needed because with this
proposed rule it would be a violation of the ESA for any person to sell
or offer for sale ivory or sport-hunted trophies in interstate or
foreign commerce or to deliver, receive, carry, transport, or ship
ivory or sport-hunted trophies in interstate or foreign commerce in the
course of a commercial activity except for certain manufactured items
that would qualify under the de minimis exception. Therefore any U.S.
citizen or other person subject to the jurisdiction of the United
States who commercialized an item containing ivory or a sport-hunted
trophy in violation of these prohibitions would be in violation of this
rule regardless of whether this additional restriction were in place.
Under the current 4(d) rule, worked ivory may be exported in
accordance with the requirements in 50 CFR parts 13 and 23, and raw
ivory may not be exported from the United States for commercial
purposes under any circumstances. Under the AfECA, the export of all
raw ivory is prohibited. We propose to revise the 4(d) rule to prohibit
export of raw ivory, consistent with the AfECA prohibition, with the
exception of antiques. For the same reasons discussed above, we also
propose to prohibit export of worked ivory, other than antiques, except
in the same limited circumstances and for the same limited purposes
allowed for import: By a government agency for law enforcement
purposes, for a genuine scientific purpose that will contribute to the
conservation of the African elephant, as part of a qualifying musical
instrument, as a qualifying item in a traveling exhibition, or as a
qualifying item that is part of a household move or inheritance.
In developing this proposed rule, we have given very careful
consideration to the types of circumstances and purposes for which we
could allow exceptions to the prohibitions on import and export of
African elephant ivory. However, we seek information and comment
regarding the need for and advisability of finalizing a rule that
includes a broader exception to those prohibitions for the
noncommercial import or export of worked ivory in circumstances that
are not covered by the exceptions for musical instrument, traveling
exhibitions, household moves or inheritances, or genuine scientific
purposes. In particular, we seek information from individuals who may
wish to engage in noncommercial import or export of worked African
elephant ivory that would be prohibited by this proposed rule. We are
also interested in the potential impacts of these prohibitions on
segments of the trade not covered by these exceptions.
Information regarding the illegal killing of elephants and the
alarming growth in illegal trade in elephant ivory shows that all
appropriate actions are needed to restrict the export of raw and worked
African elephant ivory where that export is likely to contribute to
commercializing elephant ivory. It is appropriate, however, to allow
certain limited exceptions to the export prohibition where export
either would be beneficial to law enforcement or the conservation of
the species, or where export of certain articles of worked ivory meet
strict criteria and are regulated in such a manner that their export
would not contribute to the illegal trade in ivory and pose no risk to
elephant populations. Export of worked African elephant ivory would
also be available by threatened species permit under 50 CFR 17.32,
provided the person met all of the requirements of that section as well
as the general permitting requirements under 50 CFR part 13.
As noted previously, Section 4(d) of the ESA does not apply to
items that qualify as antiques. While the prohibitions on import and
export of ivory proposed here thus do not apply to ESA antiques, the
prohibitions on import and export of ivory under AfECA would still
apply, regardless of the age of the item. In addition, certain worked
ivory items that qualify under the ESA section 9(b)(1) ``pre-Act''
exemption (see below) could also be exported (see below). No ESA permit
would be required for any worked ivory that qualified under any of
these provisions, but it would still need to be accompanied by any
required CITES document and meet all requirements under the Service's
general wildlife import/export regulations.
Qualifying Pre-Act Specimens
The ESA provides an exemption in section 9(b)(1) from any
prohibitions contained in a 4(d) rule for specimens of threatened
species ``held in captivity or in a controlled environment'' on the
date the ESA entered into effect
[[Page 45171]]
(December 28, 1973) or the date the final rule listing the species
under the ESA was published in the Federal Register (which for the
African elephant was May 12, 1978), whichever is later. The exemption
applies only if ``such holding and any subsequent holding or use of the
fish or wildlife was not in the course of a commercial activity.'' As
noted above in Interstate and foreign commerce, activities with
threatened species do not qualify as ``commercial activity'' unless the
activity involves the transfer of the specimen from one person to
another person in the pursuit of gain or profit. Therefore, the
exemption would apply unless commercial activity with an African
elephant specimen (including ivory) on or after May 12, 1978, involved
the transfer of the specimen from one person to another person in
pursuit of gain or profit. (See the discussion on activities that occur
``in the course of a commercial activity'' under Interstate and foreign
commerce, above.)
Persons wishing to engage in activities that otherwise would be
prohibited under this 4(d) rule would have the burden of showing that
their activities qualify for this ``pre-Act'' exemption. The statutory
exemption would not change with revision of the 4(d) rule, but it is
also important to remember that nothing in the ESA provides that an
exemption under that law modifies or supersedes provisions in other
applicable statutes such as the AfECA. (See Antique specimens, below,
for a full discussion on the relationship between ESA exemptions and
AfECA restrictions.) Therefore, activities prohibited under the AfECA
remain prohibited, even if the ESA ``pre-Act'' exemption applies.
The pre-Act exemption would apply to the following examples if the
activity met all requirements of the ESA: The prohibition against take
for qualifying live elephants that were held in captivity on May 12,
1978; the prohibition on the export of worked ivory that was held in a
controlled environment on May 12, 1978; and the requirement to get a
threatened species permit for the export of worked ivory to be used for
genuine scientific purposes for ivory that was held in a controlled
environment on May 12, 1978, provided that in each case the holding and
any subsequent holding or use of the live animal or specimen since 1978
did not include transfer from one person to another person in the
pursuit of gain or profit.
In addition, if the holding as of May 12, 1978, or any subsequent
holding or use included a transfer from one person to another person in
the pursuit of gain or profit, the exemption would still be available
if the activities qualified as exhibition of commodities by a museum or
similar cultural or historical organization. All import and export
requirements under CITES and the general wildlife import/export
regulations at 50 CFR part 14 would still need to be met. Section
9(b)(1) of the ESA provides an exemption from ESA threatened-species
prohibitions only, not from requirements that arise under CITES and the
general import/export requirements under the ESA.
Antique Specimens
Section 10(h) of the ESA provides an exemption for antique articles
that are: (a) Not less than 100 years of age; (b) composed in whole or
in part of any endangered species or threatened species; (c) have not
been repaired or modified with any part of any such species on or after
the date of the enactment of the ESA; and (d) are entered at a port
designated for ESA antiques. Any person who is conducting activities
with a qualifying ESA antique is exempt from, among other things, any
restrictions provided in a 4(d) rule for that species, including
restrictions on import; export; sale or offer for sale in interstate or
foreign commerce; and delivery, receipt, carrying, transport, or
shipment in interstate or foreign commerce and in the course of a
commercial activity. The taking prohibition would not apply to dead
specimens such as antiques. Anyone wishing to engage in activities
under this antiques exception must be able to demonstrate that the item
meets the requirements of the ESA.
Items that qualify as antiques under the ESA are not subject to the
prohibitions in the proposed 4(d) rule. The ESA antiques exemption does
not apply, however, to prohibitions imposed under the AfECA on the
import of raw and worked African elephant ivory into the United States
and the export of raw ivory from the United States. As with the ESA
section 9(b)(1) ``pre-Act'' exemption, nothing in the ESA provides that
an exemption under that law modifies or supersedes provisions in other
applicable statutes such as the AfECA. The provisions in the AfECA
regarding the import and certain export of African elephant ivory were
specifically enacted to address conservation concerns with African
elephants and were enacted later in time than the earlier, more general
ESA exemption applicable to all endangered and threatened species, so
the later, more specific restrictions on import and export in the AfECA
take precedence over the earlier, more general exemption in the ESA. As
noted previously, section 4241 of the AfECA (16 U.S.C. 4241) specifies
that the authority of the Service under the AfECA is in addition to and
does not affect the authority of the Service under the ESA.
A qualifying ESA antique containing African elephant ivory could
thus only be imported if it also qualified for one of the exceptions
from enforcement of the AfECA moratorium created by Director's Order
No. 210: antique raw or worked ivory for law enforcement purposes,
antique raw or worked ivory for scientific purposes, antique worked
ivory that is part of a musical instrument, antique worked ivory in a
traveling exhibition, antique worked ivory that is part of a household
move, or antique worked ivory that was inherited. As noted previously,
we believe these exceptions are consistent with Congressional intent in
enacting the AfECA, which focused on the harm caused by poaching to
supply the illegal trade in ivory. An antique sport-hunted trophy could
not qualify for import because it would not be able to meet the
requirements under the AfECA that it was taken from an elephant range
country with an elephant quota declared to the CITES Secretariat (which
did not exist 100 years ago). Because the prohibition on the export of
all raw ivory is under the AfECA, the ESA antique exemption also could
not be used to export antique raw ivory.
For qualifying ESA antiques containing African elephant ivory that
could be imported as described above and antiques containing African
elephant ivory that meet all of the requirements under section 10(h) of
the ESA and were imported before the AfECA import moratorium was put in
place in 1989, whether those antiques could be commercialized in
interstate or foreign commerce would depend on whether restrictions are
based on the ESA or CITES. Any restrictions that are based on CITES or
laws other than the ESA would remain in place.
As discussed earlier, one of the requirements to qualify for the
ESA antiques exemption is that the antique must have been imported into
the United States through a port designated for the import of ESA
antiques. These ports were first designated on September 22, 1982.
Therefore, under the terms of the ESA, no item that contains parts of
any endangered or threatened species (including African elephant ivory)
can qualify under the ESA antiques exemption unless it was imported
into the United States through one of the designated ESA antiques ports
on some date after September 22, 1982.
[[Page 45172]]
On February 25, 2014 (as amended on May 15, 2014), the Service
issued Director's Order No. 210, which, among other things, provides
direction to Service employees on implementation and enforcement of the
ESA antiques exemption. Appendix A to Director's Order No. 210
reiterates the four statutory requirements for an item to qualify as an
ESA antique and states that, as a matter of law enforcement discretion,
the prohibitions under the ESA would not be enforced for antiques that
meet the requirements of being at least 100 years old; being composed
of an endangered or threatened species; and not having been repaired or
modified with any part of an endangered or threatened species since
December 28, 1973, but were imported prior to September 22, 1982, or
were created in the United States and never imported and therefore do
not meet the requirement of having been imported at a designated ESA
antiques port. This Director's Order remains in place. The Service will
apply its law enforcement discretion regarding otherwise qualifying
antiques that were imported prior to September 22, 1982, or were
produced in the United States and never imported, allowing them to be
exported, 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, provided
all other legal requirements are met. Appendix A of the Director's
Order also contains guidance on documentation needed and other
information for conducting activities with ESA antiques. Director's
Order No. 210, as amended on May 15, 2014, including Appendix A can be
found at https://www.fws.gov/policy/do210.html.
As described in Director's Order No. 210, the person claiming the
benefit of the ESA antiques exemption must provide evidence to
demonstrate that the item qualifies as an ESA antique. This evidence
may include a qualified appraisal, documents that provide detailed
provenance, and/or scientific testing. Since issuance of the Director's
Order, we have heard from some people who are concerned about what the
Service might require in terms of documentation or authentication of
their antique items. We want to be clear that establishing provenance
does not necessarily require destructive testing; there may be other
ways to establish provenance, such as a qualified appraisal or another
method that documents the age by establishing the origin of the item.
We have listed scientific testing (in the Appendix to Director's Order
No. 210) as an option for people who may want to make use of it in
certain circumstance for certain items. However, this is only one
option, in a suite of possible options. The provenance may be
determined through a detailed history of the item, including but not
limited to family photos, ethnographic fieldwork, or other information
that authenticates the item and assigns the work to a known period of
time or, where possible, to a known artist. Scientific testing could be
necessary if there is no other way to establish the provenance of an
item.
In addition, we want to be clear that we do not require scientific
testing of the ivory components in a manufactured antique item. Where a
person can demonstrate that an item, for example a table with ivory
inlays, is older than 100 years, and that the table has not been
repaired or modified with ivory (or any other threatened or endangered
species) since December 28, 1973, the Service considers the age
criteria in Section 10(h) to be met. We would not require testing of
the ivory itself to determine its age. Of course, to qualify for the
ESA antiques exemption a person must demonstrate that all four of the
criteria in Section 10(h) of the ESA have been met.
We also want to clarify that these documentation requirements are
not new. The ESA itself places the burden of proof on the person
claiming the benefit of the exemption (Sec. 10(g)) and the Service has
required documentation for antique items since the 1970s. This
documentation requirement is also not unique to African elephant ivory;
it applies to specimens of any species listed under the ESA when a
person is claiming the benefit of this exemption from prohibitions.
Over the years, the Service has provided information regarding
acceptable documentation for establishing age and provenance; most
recently, in the Appendix to Director's Order No. 210. Our CITES
regulations at 50 CFR 23.34 also provide information on the kinds of
records a person can use to show the origin of a specimen. We seek
comment from the public on whether additional guidance is needed in the
regulatory code regarding implementation of the ESA antiques exemption.
Determination
Section 4(d) of the ESA states that the ``Secretary shall issue
such regulations as [s]he deems necessary and advisable to provide for
the conservation'' of species listed as threatened. Additionally,
section 4(d) of the ESA provides that the Secretary ``may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1).'' Thus regulations promulgated under section
4(d) of the ESA provide the Secretary, as delegated to the Service,
discretion to select appropriate provisions for threatened species,
including prohibitions, exceptions, and required authorizations. Some
of the ESA prohibitions and exceptions from section 9(a)(1) of the ESA
and from 50 CFR 17.31 and 17.32 may be appropriate for the species and
be incorporated into a 4(d) rule. However, the 4(d) rule may also
include other provisions that take into account other applicable laws
and are tailored to the specific conservation needs of the listed
species, and therefore may be more or less restrictive than the general
provisions for threatened species. As noted by Congress 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,'' as long as the measures will ``serve
to conserve, protect, or restore the species concerned in accordance
with the purposes of the [ESA]'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
This proposed rule includes appropriate provisions that are
necessary and advisable to provide for the conservation of the African
elephant, while also including appropriate prohibitions from Section
9(a)(1) of the ESA. The primary threat to the African elephant is
poaching of elephants for their tusks and the associated illegal trade
in both raw and worked ivory. To restrict this illegal trade, the
proposed provisions under this rule prohibit the import of African
elephant ivory, with certain narrow exceptions, restrict the import of
sport-hunted trophies, and prohibit the export of raw ivory. The rule
provides two exceptions from the prohibition on import of ivory that
would directly benefit law enforcement efforts that involve African
elephants and science that would contribute to the conservation of the
species. The rule provides three additional exceptions, which apply to
the noncommercial import or export of worked ivory only, for qualifying
musical instruments, items in a traveling exhibition, inherited items,
and items that are part of a household move. Any worked ivory imported
or exported under these
[[Page 45173]]
exceptions would need to meet strict criteria under both CITES and this
rule, resulting in restrictions that safeguard against import or export
of ivory that could contribute to the illegal trade in ivory or pose a
risk to elephant populations. The import and export of ivory is also
subject to applicable restrictions under the AfECA, except to the
extent allowed under Director's Order No. 210, as amended on May 15,
2014. Our information indicates that these strict controls on the
import and export of African elephant ivory will help to ensure that
U.S. participation in the ivory trade will not contribute to the
illegal killing of elephants.
For the same reasons that the import and export of raw and worked
ivory need to be carefully regulated, the import and export of African
elephant sport-hunted trophies must be regulated in a manner that would
ensure that the import and export does not contribute to the illegal
trade of ivory. The proposed rule would require that the import of all
sport-hunted trophies, regardless of the CITES status of the source
population, be authorized through the issuance of a threatened species
permit under 50 CFR 17.32. Authorizing importation through threatened
species enhancement permits would allow us to more carefully evaluate
trophy imports in accordance with legal requirements and the
conservation needs of the species. The limitation of two trophies per
hunter per year would ensure that the importation of African elephant
trophies is actually the result of personal, noncommercial sport
hunting and would prevent the importation of commercial quantities of
ivory.
Perhaps the biggest change from the current 4(d) rule would be new
restrictions on the commercialization of ivory in interstate and
foreign commerce. The proposed rule would prohibit the sale or offer
for sale of ivory and sport-hunted trophies in interstate or foreign
commerce and the delivery, receipt, carrying, transport, or shipment of
ivory and sport-hunted trophies in interstate or foreign commerce in
the course of a commercial activity. Exceptions would be available for
qualifying antiques and for certain items manufactured before the date
of the final rule for this rulemaking that contain less than 200 grams
of ivory and meet other conditions, while certain commercial activities
could also be authorized through a threatened species permit under 50
CFR 17.32. However, the de minimis exception and threatened species
permits would not be available for sport-hunted trophies and ivory
items that were imported as part of a household move or inheritance. We
have determined that items meeting the de minimis exception, including
the requirements that the ivory be a fixed component of a larger
manufactured item, that the ivory is not raw, that the ivory is not the
primary source of value of the item, that the total weight of the ivory
is less than 200 grams, and that the manufactured item is not made
wholly or primarily of ivory, would minimize the possibility of the
ivory contributing to either the global or U.S. markets in illegal
ivory.
The proposed rule, however, would continue to allow certain
activities that pose no risk to African elephants. Live elephants and
elephant parts or products other than ivory and sport-hunted trophies
could continue to 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, provided all
other requirements under CITES and the Service's general import/export
regulations were met. CITES requirements, including findings that must
be made before documents can be issued, would continue to ensure that
all import and export of live animals and parts or products other than
ivory and sport-hunted trophies remain legal and non-detrimental to the
survival of the species. There is no information that indicates that
import, export, or commercialization of live elephants or non-ivory
parts and products as currently regulated under CITES has any negative
effect on African elephants or is contributing in any way to the
current crisis involving the killing of elephants for their ivory. The
new restriction on the taking of live elephants held in captivity
within the United States or during transport would help to ensure that
animals in captivity receive an appropriate standard of care.
In addition to this proposed rule being necessary and advisable to
provide for the conservation of the species and including appropriate
prohibitions from section 9(a)(1) of the ESA, it also is consistent
with other efforts to improve elephant conservation. With this rule,
the United States would ensure that we have in place comprehensive
internal regulatory and enforcement measures to regulate domestic trade
in raw and worked ivory, as called for at the 16th meeting of the
Conference of the Parties to CITES in March 2013 (see Resolution Conf.
10.10 (Rev. CoP16)). More broadly, the proposed rule would respond to
the President's Executive Order of July 1, 2013, calling for all
Federal agencies to take action to combat wildlife trafficking in all
wildlife and to reduce demand for illegally traded wildlife, both at
home and abroad. All of the proposed revisions to the African elephant
4(d) rule would allow us to better regulate the U.S. domestic market
and U.S. participation in the global market for African elephant ivory,
which we believe will lead to a reduction of the illegal killing of
elephants for their ivory.
Table 1--How Would Proposed Changes to the African Elephant 4(d) Rule
Affect Trade in African Elephant Ivory?
[This table is only for guidance on proposed revisions to the existing
Endangered Species Act 4(d) rule for the African elephant. Please see
the proposed rule text for details. All imports and exports must be
accompanied by appropriate CITES documents and meet other FWS import/
export requirements]
------------------------------------------------------------------------
What activities are
currently allowed/ What are the
prohibited? proposed changes?
------------------------------------------------------------------------
In 2014, the Service This column
revised Director's describes the
Order No. 210 contents of the
(effective May 15, proposed rule in
2014) and U.S. general terms.
CITES implementing Please refer to the
regulations [50 CFR proposed rule text
part 23] (effective for details. These
June 26, 2014). provisions will not
Both of these go into effect
actions created new until we have
rules for trade in considered input
elephant ivory. received during the
public comment
period and
published a final
rule in the Federal
Register.
Import...................... Commercial Commercial
What's allowed:..... The proposed rule
No does not include
commercial imports any changes for
allowed. commercial imports.
[[Page 45174]]
Noncommercial Noncommercial
What's allowed:..... The proposed rule
Sport- includes the
hunted trophies (no following changes
limit). for noncommercial
Law imports:
enforcement and Limits
bona fide sport-hunted
scientific trophies to two per
specimens. hunter per year.
Worked Removes the
elephant ivory that requirement that
was legally worked elephant
acquired and ivory has not been
removed from the sold since February
wild prior to 25, 2014. All other
February 26, 1976 requirements for
and has not been worked elephant
sold since February ivory (listed in
25, 2014 and is the previous
either:. column) must be
[cir] Part of a met.
household move or
inheritance (see
Director's Order
No. 210 for
details);.
[cir] Part of a
musical instrument
(see Director's
Order No. 210 for
details); or.
[cir] Part of a
traveling
exhibition (see
Director's Order
No. 210 for
details)..
What's prohibited:..
Worked
ivory that does not
meet the conditions
described above..
Raw ivory
(except for sport-
hunted trophies)..
Export...................... Commercial.......... Commercial
What's allowed:..... The proposed rule
CITES pre- would further
Convention worked restrict commercial
ivory, including exports to only
antiques.. those items that
What's prohibited:.. meet the criteria
Raw ivory.. of the ESA antiques
exemption.*
Raw ivory remains
prohibited
regardless of age.
Noncommercial....... Noncommercial
What's allowed:..... The proposed rule
Worked would further
ivory. restrict
What's prohibited:.. noncommercial
Raw ivory.. exports to the
following
categories:
Only those
items that meet the
criteria of the ESA
antiques
exemption.*
Worked
elephant ivory that
was legally
acquired and
removed from the
wild prior to
February 26, 1976,
and is either:
[cir] Part of a
household move or
inheritance;
[cir] Part of a
musical instrument;
or
[cir] Part of a
traveling
exhibition.
Worked
ivory that
qualifies as pre-
Act
Law
enforcement and
bona fide
scientific
specimens.
Raw ivory remains
prohibited
regardless of age.
Foreign commerce............ There are no The proposed rule
restrictions on includes the
foreign commerce. following changes
for foreign
commerce:
Restricts
foreign commerce
to:
[cir] items that
meet the criteria
of the ESA antiques
exemption,* and
[cir] certain
manufactured items
that contain a
small (de minimis)
amount of ivory.
Prohibits
foreign commerce
in:
[cir] sport-hunted
trophies, and
[cir] ivory imported/
exported as part of
a household move or
inheritance.
Sales across state lines What's allowed:..... The proposed rule
[dagger] (interstate Ivory includes the
commerce). lawfully imported following changes
prior to the date for interstate
the African commerce:
elephant was listed Further
in CITES Appendix I restricts
(January 18, 1990)-- interstate commerce
[seller must to only:
demonstrate].. [cir] items that
Ivory meet the criteria
imported under a of the ESA antiques
CITES pre- exemption,* and
Convention [cir] certain
certificate--[selle manufactured items
r must that contain a
demonstrate].. small (de minimis)
amount of ivory.**
Prohibits
interstate commerce
in:
[cir] ivory imported
under the
exceptions for
household move or
inheritance, or for
law enforcement or
genuine scientific
purposes, and
[cir] sport-hunted
trophies.
[[Page 45175]]
Sales within a state What's allowed: The proposed rule
(intrastate commerce). Ivory does not include
lawfully imported any changes for
prior to the date intrastate
the African commerce.
elephant was listed
in CITES Appendix I
(January 18, 1990)--
[seller must
demonstrate]..
Ivory
imported under a
CITES pre-
Convention
certificate--[selle
r must
demonstrate]..
Noncommercial movement Noncommercial use, The proposed rule
[dagger] within the United including does not include
States. interstate and any changes for
intrastate movement noncommercial
within the United movement within the
States, of legally United States.
acquired ivory is
allowed.
Personal possession......... Possession and The proposed rule
noncommercial use does not include
of legally acquired any changes for
ivory is allowed. personal
possession.
------------------------------------------------------------------------
[dagger] See preamble discussion in the section titled Interstate and
foreign commerce.
* To qualify for the ESA antique exemption an item must meet all of the
following criteria [seller/importer/exporter must demonstrate]:
A. It is 100 years or older.
B. It is composed in whole or in part of an ESA-listed species;
C. It has not been repaired or modified with any such species after
December 27, 1973; and
D. It is being or was imported through an endangered species ``antique
port.''
Under Director's Order No. 210, as a matter of enforcement discretion,
items imported prior to September 22, 1982, and items created in the
United States and never imported must comply with elements A, B, and C
above, but not element D.
** To qualify for the de minimis exception, manufactured items must meet
all of the following criteria:
(i) If the item is located within the United States, the ivory was
imported into the United States prior to January 18, 1990, or was
imported into the United States under a Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES) pre-
Convention certificate with no limitation on its commercial use;
(ii) If the item is located outside the United States, the ivory was
removed from the wild prior to February 26, 1976;
(iii) The ivory is a fixed component or components of a larger
manufactured item and is not in its current form the primary source of
the value of the item;
(iv) The ivory is not raw;
(v) The manufactured item is not made wholly or primarily of ivory;
(vi) The total weight of the ivory component or components is less than
200 grams; and
(vii) The item was manufactured before the effective date of the final
rule].
For a discussion of the de minimis exception see the section of the
preamble titled Interstate and foreign commerce; for details of the de
minimis exception see paragraph (e)(3) in the rule text at the end of
this document.
Required Determinations
Regulatory Planning and Review: Executive Order 12866 provides that
the Office of Information and Regulatory Affairs in the Office of
Management and Budget will review all significant rules. The Office of
Information and Regulatory Affairs has determined that this rule is
significant because it may raise novel legal or policy issues.
Executive Order 13563 reaffirms the principles of Executive Order 12866
while calling for improvements in the Nation's regulatory system to
promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The Executive Order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. E.O. 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this rule in a manner
consistent with these requirements.
A brief assessment to identify the economic costs and benefits
associated with this proposed rule follows. The Service has prepared an
economic analysis, as part of our review under the National
Environmental Policy Act (NEPA), which we will make available for
review and comment (see the paragraph in this Required Determinations
section on the National Environmental Policy Act). The proposed rule
would revise the 4(d) rule, which regulates trade of African elephants
(Loxodonta africana), including African elephant parts and products. We
are proposing to revise the 4(d) rule to more strictly control U.S.
trade in African elephant ivory. Revision of the 4(d) rule as proposed
would mean that African elephants are subject to some of the standard
provisions for species classified as threatened under the ESA. This
means that the taking of live elephants and (with certain exceptions)
import, export, and commercial activities in interstate or foreign
commerce of African elephant parts and products containing ivory would
generally be prohibited without a permit issued under 50 CFR 17.32 for
``Scientific purposes, or the enhancement of propagation or survival,
or economic hardship, or zoological exhibition, or educational
purposes, or incidental taking, or special purposes consistent with the
purposes of the [ESA].'' There are specific exceptions for certain
activities with specimens containing de minimis quantities of ivory;
ivory items that meet certain requirements for musical instruments,
traveling exhibitions, inherited items, and items that are part of a
household move; ivory imported or exported for scientific purposes or
law enforcement; certain live elephants; and ivory items that qualify
as ``pre-Act'' or as antiques under the ESA.
This rule would regulate only African elephants and African
elephant ivory. Asian elephants and parts or products from Asian
elephants, including ivory, are regulated separately under the ESA.
Ivory from other species such as walrus is also regulated separately
under the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.). Ivory
from extinct species such as mammoths is not
[[Page 45176]]
regulated under statutes implemented by the Service.
Impacted markets include those involving U.S. citizens or other
persons subject to the jurisdiction of the United States that buy,
sell, or otherwise commercialize African elephant ivory products across
State lines and those that buy, sell, or otherwise commercialize such
specimens in international trade. Examples of products in trade
containing African elephant ivory include cue sticks, pool balls, knife
handles, gun grips, furniture inlay, jewelry, artwork, and musical
instrument parts.
The market for African elephant products, including ivory, is not
large enough to have major data collections or reporting requirements,
which results in a limited amount of available data for economic
analysis. Some import and export data are available from the Service's
Office of Law Enforcement and Division of Management Authority, and
from reports produced by other organizations. On the whole, the
available data provide a general overview of the African elephant ivory
market. Using this information, we can make reasonable assumptions to
approximate the potential economic impact of revision of the 4(d) rule
for the African elephant. With this proposed rule, we solicit public
input on impacts to sales, percentage of revenue impacted, and the
number of businesses affected, particularly with regard to interstate
and foreign commerce, for which we have the least amount of
information, to help quantify these costs and benefits. Please see the
Public Comments section at the end of SUPPLEMENTARY INFORMATION for
further information about submitting comments.
Imports. There has been a moratorium on the import of African
elephant ivory other than sport-hunted trophies, established under the
AfECA and in place since 1989. In recent years, the Service has
allowed, as a matter of law enforcement discretion, the import of
certain antique African elephant ivory. Director's Order No. 210,
issued in February 2014, clarified that we will no longer allow any
commercial import of African elephant ivory, regardless of its age. We
are proposing to reflect this provision of Director's Order No. 210 in
the 4(d) rule (except for antiques, which are exempt from this 4(d)
rule, but remain subject to the AfECA moratorium). Import of live
African elephants and non-ivory African elephant parts and products
would continue to be allowed under the proposed revisions, provided the
requirements at 50 CFR parts 13, 14, and 23 are met. Import of African
elephant sport-hunted trophies would be limited to two trophies per
hunter per year. This may impact about seven hunters, representing
about 3 percent to 4 percent of hunters, annually.
Exports. Under the current 4(d) rule, raw ivory may not be exported
from the United States for commercial purposes under any circumstances.
In addition, export of raw ivory from the United States is prohibited
under the AfECA. Therefore, the revisions to the 4(d) rule would have
no impact on exports of raw ivory. Revision of the 4(d) rule as
proposed would mean that export of worked African elephant ivory would
be prohibited without an ESA permit issued under 50 CFR 17.32, except
for specimens that qualify as ``pre-Act'' or as ESA antiques and
certain musical instruments; items in a traveling exhibition; items
that are part of a household move or inheritance; items exported for
scientific purposes; and items exported for law enforcement purposes
that meet specific conditions and, therefore, may be exported without
an ESA permit. Export of live African elephants and non-ivory products
made from African elephants would continue to be allowed provided the
requirements at 50 CFR parts 13, 14, and 23 are met.
From 2007 to 2011, the total declared value of worked African
elephant ivory exported from the United States varied widely from $32.1
million to $175.7 million. The declared value of items containing
African elephant ivory that were less than 100 years old (and,
therefore, could not qualify as ESA antiques) ranged from $607,000 to
$3.7 million annually during the same time period. As this rule would
no longer permit the commercial export of non-antique ivory, we expect
based on the information currently available that, on average,
commercial export of worked ivory would decrease by about 2 percent
annually.
Domestic and Foreign Commerce. The proposed rule would prohibit
certain commercial activities such as sale in interstate or foreign
commerce of African elephant ivory and delivery, receipt, carrying,
transport, or shipment of ivory in interstate or foreign commerce in
the course of a commercial activity (except for qualifying ESA antiques
and certain manufactured items containing de minimis amounts of ivory)
without an ESA permit issued under 50 CFR 17.32. Otherwise, commercial
activities in interstate and foreign commerce with live African
elephants and African elephant parts and products other than ivory
would continue to be allowed under the proposed revisions to the 4(d)
rule. While revisions to the 4(d) rule would generally result in
prohibitions on sale or offer for sale in interstate or foreign
commerce as well as prohibitions on delivery, receipt, carrying,
transport, or shipment in interstate or foreign commerce in the course
of a commercial activity of both raw and worked African elephant ivory,
it would not have an impact on intrastate commerce. Businesses would
not be prohibited by the 4(d) rule from selling raw or worked ivory
within the State in which they are located. (There are, however,
restrictions under our CITES regulations at 50 CFR 23.55 for intrastate
sale of elephant ivory.) As noted earlier, available data provide only
a general overview of the African elephant ivory market. Assuming that
the domestic market is similar to the export market, then non-antique
worked ivory domestic sales would also decrease about 2 percent
annually under the proposed rule. We request information from the
public about the potential impact to the domestic market. Because we
are proposing to allow domestic and foreign commerce commercial
activities with certain items containing de minimis amounts of ivory,
and many of these items would be precluded from export, it is possible
that an even smaller percentage of the domestic market would be
impacted compared to the export market. Certain commercial activities
such as sale in interstate or foreign commerce with raw ivory and non-
antique worked ivory, with the exception of those items containing de
minimis amounts of worked ivory mentioned above, would no longer be
permitted.
Revising the 4(d) rule for African elephant, as proposed here,
would improve domestic regulation of the U.S. market as well as foreign
markets where commercial activities involving elephant ivory are
conducted by U.S. citizens and facilitate enforcement efforts within
the United States. We are proposing to take this action to increase
protection for African elephants in response to the alarming rise in
poaching of African elephants, which is fueling the rapidly expanding
illegal trade in ivory. As noted in the preamble to this proposed rule,
the United States continues to play a role as a destination and transit
country for illegally traded elephant ivory. Increased control of the
U.S. domestic market and foreign markets where commercial activities
involving elephant ivory are conducted by U.S. citizens would benefit
the conservation of the African elephant.
Regulatory Flexibility Act: Under the Regulatory Flexibility Act
(as amended by the Small Business Regulatory
[[Page 45177]]
Enforcement Fairness Act (SBREFA) of 1996), whenever a Federal agency
is required to publish a notice of rulemaking for any proposed or final
rule, it must prepare and make available for public comment a
regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small government jurisdictions) (5 U.S.C. 601 et seq.). However, no
regulatory flexibility analysis is required if the head of an agency
certifies that the rule would not have a significant economic impact on
a substantial number of small entities. Thus, for a regulatory
flexibility analysis to be required, impacts must exceed a threshold
for ``significant impact'' and a threshold for a ``substantial number
of small entities.'' See 5 U.S.C. 605(b). SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule would not have a
significant economic impact on a substantial number of small entities.
The U.S. Small Business Administration (SBA) defines a small
business as one with annual revenue or employment that meets or is
below an established size standard. To assess the effects of the rule
on small entities, we focus on businesses that buy or sell elephant
ivory. Businesses produce a variety of products from elephant ivory
including cue sticks, pool balls, knife handles, gun grips, furniture
inlay, jewelry, and instrument parts. Depending on the type of product
produced, these businesses could be included in a number of different
industries, including (1) Musical Instrument Manufacturing (North
American Industry Classification System (NAICS) 339992), where small
businesses have less than $10.0 million revenue; (2) Sporting and
Recreational Goods and Supplies Merchant Wholesalers (NAICS 423910),
where small businesses have fewer than 100 employees; (3) All Other
Miscellaneous Wood Product Manufacturing (NAICS 321999), where small
businesses have fewer than 500 employees; (4) Metal Kitchen Cookware,
Utensil, Cutlery, and Flatware (except Precious) Manufacturing (NAICS
332215), where small businesses have fewer than 500 employees; (5)
Jewelry and Silverware Manufacturing, (NAICS 339910), where small
businesses have fewer than 500 employees; (6) Used Merchandise Stores
(NAICS 453310), where small businesses have less than $7.5 million in
revenue; and (7) Art Dealers (NAICS 453920), where small businesses
have less than $7.5 million in revenue. Table 2 describes the number of
businesses within each industry and the estimated percentage of small
businesses. The U.S. Economic Census does not capture the detail
necessary to determine the number of small businesses that are engaged
in commerce with African elephant ivory products within these
industries. Based on the distribution of small businesses with these
industries as shown in Table 2, we expect that the majority of the
entities involved with trade in African elephant ivory would be
considered small as defined by the SBA.
Table 2--Distribution of Businesses Within Affected Industries
----------------------------------------------------------------------------------------------------------------
Percentage of
NAICS Code Description Number of small
businesses businesses
----------------------------------------------------------------------------------------------------------------
339992..................................... Musical instrument manufacturing... 597 73
423910..................................... Sporting and recreational goods and 5,953 97
supplies merchant wholesalers.
321999..................................... All other miscellaneous wood 1,763 100
product manufacturing.
332215..................................... Metal kitchen cookware, utensil, 188 99
cutlery, and flatware (except
precious) manufacturing.
339910..................................... Jewelry and silverware 2,119 100
manufacturing.
453310..................................... Used merchandise stores............ 19,793 74
453920..................................... Art dealers........................ 4,937 95
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau, 2012 County Business Patterns.
The impact on individual businesses is dependent on the percentage
of interstate and export sales that involve non-antique African
elephant ivory that would not fall under the de minimis exception. That
is, the impact depends on where businesses are located, where their
customers are located, and the kinds of items containing ivory that
they sell. Information on business profiles to determine the percent of
revenues affected by the rule is currently unavailable. Overall, we
estimate that worked ivory exports would decrease about $2.1 million
annually, which represents about 2 percent of the total declared value
of worked ivory exported from 2007 to 2011. We also expect that
domestic sales would decrease by about 2 percent annually. Because we
are proposing to allow domestic commercial activities with certain
items containing de minimis amounts of ivory, and many of these items
would be precluded from export, it is possible that an even smaller
percentage of the domestic market would be impacted compared to the
export market.
Based on the available information, we do not expect these changes
to have a substantial impact on small entities within the five affected
industries listed above. We, therefore, certify that this proposed rule
would not have a significant economic effect on a substantial number of
small entities as defined under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). A Regulatory Flexibility Analysis is not required.
Accordingly, a Small Entity Compliance Guide is not required.
This proposed rule would create no substantial fee or paperwork
changes in the permitting process. The regulatory changes would require
issuance of ESA permits for import of sport-hunted African elephant
trophies. We estimate that we would issue 300 ESA permits per year for
these sport-hunted trophies, with a fee of $100 per permit. These
changes are not major in scope and would create only a modest financial
or paperwork burden on the affected members of the general public. The
authority to regulate activities involving ESA-listed species already
exists under the ESA and is carried out through regulations contained
in 50 CFR part 17.
Small Business Regulatory Enforcement Fairness Act: This proposed
rule is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. This rule:
a. Would not have an annual effect on the economy of $100 million
or more. This proposed rule revises the 4(d) rule for African elephant,
which makes the African elephant subject to the same of the provisions
applied to other threatened species not covered by a 4(d)
[[Page 45178]]
rule, with certain exceptions. This proposed rule would not have a
negative effect on this part of the economy. It would affect all
importers, exporters, re-exporters, and domestic and certain traders in
foreign commerce of African elephant ivory equally, and the impacts
would be evenly spread among all businesses, whether large or small.
There is not a disproportionate impact for small or large businesses.
b. Would not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, tribal, or local
government agencies; or geographic regions.
c. Would not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act: Under the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.):
a. This proposed rule would not significantly or uniquely affect
small governments. A Small Government Agency Plan is not required. The
proposed rule imposes no unfunded mandates. Therefore, this proposed
rule would have no effect on small governments' responsibilities.
b. This proposed rule would not produce a Federal requirement of
$100 million or greater in any year and is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
Takings: Under Executive Order 12630, this proposed rule does not
have significant takings implications. While certain activities that
were previously unregulated would now be regulated, possession and
other activities with African elephant ivory such as sale in intrastate
commerce would remain unregulated. A takings implication assessment is
not required.
Federalism: These proposed revisions to part 17 do not contain
significant Federalism implications. A federalism summary impact
statement under Executive Order 13132 is not required.
Civil Justice Reform: Under Executive Order 12988, the Office of
the Solicitor has determined that this proposed rule does not unduly
burden the judicial system and meets the requirements of sections 3(a)
and 3(b)(2) of the Order.
Paperwork Reduction Act: This proposed rule does not contain new
collections of information that require approval by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). OMB has reviewed and approved the information
collection requirements associated with applications and reporting for
CITES and ESA permits and assigned OMB Control No. 1018-0093, which
expires May 31, 2017. We may not conduct or sponsor and you are not
required to respond to a collection of information unless it displays a
currently valid OMB control number.
National Environmental Policy Act (NEPA): This proposed rule is
being analyzed under the criteria of the National Environmental Policy
Act, the Department of the Interior procedures for compliance with NEPA
(Departmental Manual (DM) and 43 CFR part 46), and Council on
Environmental Quality regulations for implementing the procedural
provisions of NEPA (40 CFR parts 1500-1508). We have prepared a draft
environmental assessment to determine whether this rule will have a
significant impact on the quality of the human environment under the
National Environmental Policy Act of 1969. The draft environmental
assessment is available online at https://www.regulations.gov at Docket
Number FWS-HQ-IA-2013-0091.
Government-to-Government Relationship with Tribes: The Department
of the Interior strives to strengthen its government-to-government
relationship with Indian tribes through a commitment to consultation
with Indian tribes and recognition of their right to self-governance
and tribal sovereignty. We have evaluated this rule under the
Department's consultation policy and under the criteria in Executive
Order 13175 and have determined that it has no substantial direct
effects on federally recognized Indian tribes and that consultation
under the Department's tribal consultation policy is not required.
Individual tribal members must meet the same regulatory requirements as
other individuals who trade in African elephants, including African
elephant parts and products.
Energy Supply, Distribution, or Use: Executive Order 13211 pertains
to regulations that significantly affect energy supply, distribution,
or use. This proposed rule would revise the current regulations in 50
CFR part 17 regarding trade in African elephants and African elephant
parts and products. This proposed rule would not significantly affect
energy supplies, distribution, and use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Clarity of the Rule: We are required by Executive Orders 12866 and
12988 and by the Presidential Memorandum of June 1, 1998, to write all
rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, please send us
comments by one of the methods listed under ADDRESSES. To better help
us revise the rule, your comments should be as specific as possible.
For example, you should tell us the numbers of the sections or
paragraphs that are unclearly written, which sections or sentences are
too long, the sections where you feel lists or tables would be useful,
etc.
Public Comments
We are seeking comments on the impact of the provisions in this
proposed rule on the affected public. You may submit your comments and
materials concerning this proposed rule by one of the methods listed
under ADDRESSES. We will not accept comments sent by email or fax or to
an address not listed under ADDRESSES.
We will post your entire comment--including your personal
identifying information--on https://www.regulations.gov. If you provide
personal identifying information in your written comments, you may
request at the top of your document that we withhold this information
from public review. However, we cannot guarantee that we will be able
to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov, or by
appointment, between 8 a.m. and 4 p.m., Monday through Friday, except
Federal holidays, at the U.S. Fish and Wildlife Service; Division of
Management Authority; 5275 Leesburg Pike; Falls Church, VA 22041;
telephone, (703) 358-2093.
References Cited
A list of references cited is available online at https://www.regulations.gov at Docket Number FWS-HQ-IA-2013-0091.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
For the reasons given in the preamble, we propose to amend title
50, chapter I,
[[Page 45179]]
subchapter B of the Code of Federal Regulations as follows:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Section 17.40 is amended by revising paragraph (e) to read as
follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(e) African elephant (Loxodonta africana). This paragraph (e)
applies to any specimen of the species Loxodonta africana whether live
or dead, including any part or product thereof. Except as provided in
paragraphs (e)(2) through (9) of this section, all of the prohibitions
and exceptions in Sec. Sec. 17.31 and 17.32 apply to the African
elephant. Persons seeking to benefit from the exceptions provided in
this paragraph (e) must demonstrate that they meet the criteria to
qualify for the exceptions.
(1) Definitions. In this paragraph (e), antique means any item that
meets all four criteria under section 10(h) of the Endangered Species
Act (16 U.S.C. 1539(h)). Ivory means any African elephant tusk and any
piece of an African elephant tusk. Raw ivory means any African elephant
tusk, and any piece thereof, the surface of which, polished or
unpolished, is unaltered or minimally carved. Worked ivory means any
African elephant tusk, and any piece thereof, that is not raw ivory.
(2) Live animals and parts and products other than ivory and sport-
hunted trophies. Live African elephants and African elephant parts and
products other than ivory and sport-hunted trophies may be imported
into or exported from the United States; sold or offered for sale in
interstate or foreign commerce; and delivered, received, carried,
transported, or shipped in interstate or foreign commerce in the course
of a commercial activity without a threatened species permit issued
under Sec. 17.32, provided the requirements in 50 CFR parts 13, 14,
and 23 have been met.
(3) Interstate and foreign commerce of ivory. Except for antiques
and certain manufactured items containing de minimis quantities of
ivory, sale or offer for sale of ivory in interstate or foreign
commerce and delivery, receipt, carrying, transport, or shipment of
ivory in interstate or foreign commerce in the course of a commercial
activity is prohibited. Except as provided in paragraphs (e)(5)(iii)
and (e)(6) through (8) of this section, manufactured items containing
de minimis quantities of ivory may be sold or offered for sale in
interstate or foreign commerce and delivered, received, carried,
transported, or shipped in interstate or foreign commerce in the course
of a commercial activity without a threatened species permit issued
under Sec. 17.32, provided they meet all of the following criteria:
(i) If the item is located within the United States, the ivory was
imported into the United States prior to January 18, 1990, or was
imported into the United States under a Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES) pre-
Convention certificate with no limitation on its commercial use;
(ii) If the item is located outside the United States, the ivory
was removed from the wild prior to February 26, 1976;
(iii) The ivory is a fixed component or components of a larger
manufactured item and is not in its current form the primary source of
the value of the item;
(iv) The ivory is not raw;
(v) The manufactured item is not made wholly or primarily of ivory;
(vi) The total weight of the ivory component or components is less
than 200 grams; and
(vii) The item was manufactured before [EFFECTIVE DATE OF THE FINAL
RULE].
(4) Import/export of raw ivory. Except as provided in paragraphs
(e)(6) through (9) of this section, raw ivory may not be imported into
or exported from the United States.
(5) Import/export of worked ivory. Except as provided in paragraphs
(e)(6) through (9) of this section, worked ivory may not be imported
into or exported from the United States unless it is contained in a
musical instrument, or is part of a traveling exhibition, household
move, or inheritance, and meets the following criteria:
(i) Musical instrument. Musical instruments that contain worked
ivory may be imported into and exported from the United States without
a threatened species permit issued under Sec. 17.32 provided:
(A) The ivory was legally acquired prior to February 26, 1976;
(B) The instrument containing worked ivory is accompanied by a
valid CITES musical instrument certificate or equivalent CITES
document;
(C) The instrument is securely marked or uniquely identified so
that authorities can verify that the certificate corresponds to the
musical instrument in question; and
(D) The instrument is not sold, traded, or otherwise disposed of
while outside the certificate holder's country of usual residence.
(ii) Traveling exhibition. Worked ivory that is part of a traveling
exhibition may be imported into and exported from the United States
without a threatened species permit issued under Sec. 17.32 provided:
(A) The ivory was legally acquired prior to February 26, 1976;
(B) The item containing worked ivory is accompanied by a valid
CITES traveling exhibition certificate (See the requirements for
traveling exhibition certificates at 50 CFR 23.49);
(C) The item containing ivory is securely marked or uniquely
identified so that authorities can verify that the certificate
corresponds to the item in question; and
(D) The item containing worked ivory is not sold, traded, or
otherwise disposed of while outside the certificate holder's country of
usual residence.
(iii) Household move or inheritance. Worked ivory may be imported
into or exported from the United States without a threatened species
permit issued under Sec. 17.32 for personal use as part of a household
move or as part of an inheritance if the ivory was legally acquired
prior to February 26, 1976, and the item is accompanied by a valid
CITES pre-Convention certificate. It is unlawful to sell or offer for
sale in interstate or foreign commerce or to deliver, receive, carry,
transport, or ship in interstate or foreign commerce and in the course
of a commercial activity any African elephant ivory imported into the
United States as part of a household move or inheritance. The exception
in paragraph (e)(3) of this section regarding manufactured items
containing de minimis quantities of ivory does not apply to items
imported or exported under this paragraph (e)(5)(iii) as part of a
household move or inheritance.
(6) Sport-hunted trophies. (i) African elephant sport-hunted
trophies may be imported into the United States provided:
(A) The trophy was legally taken in an African elephant range
country that declared an ivory export quota to the CITES Secretariat
for the year in which the trophy animal was killed;
(B) A determination is made that the killing of the trophy animal
will enhance the survival of the species and the trophy is accompanied
by a threatened species permit issued under Sec. 17.32;
(C) The trophy is legibly marked in accordance with 50 CFR part 23;
(D) The requirements in 50 CFR parts 13, 14, and 23 have been met;
and
(E) No more than two African elephant sport-hunted trophies are
[[Page 45180]]
imported by any hunter in a calendar year.
(ii) It is unlawful to sell or offer for sale in interstate or
foreign commerce or to deliver, receive, carry, transport, or ship in
interstate or foreign commerce and in the course of a commercial
activity any sport-hunted African elephant trophy. The exception in
paragraph (e)(3) of this section regarding manufactured items
containing de minimis quantities of ivory does not apply to ivory
imported or exported under this paragraph (e)(6) as part of a sport-
hunted trophy.
(iii) Except as provided in paragraph (e)(9) of this section, raw
ivory that was imported as part of a sport-hunted trophy may not be
exported from the United States. Except as provided in paragraphs
(e)(5), (7), (8), and (9) of this section, worked ivory imported as a
sport-hunted trophy may not be exported from the United States. Parts
of a sport-hunted trophy other than ivory may be exported from the
United States without a threatened species permit issued under Sec.
17.32 of this part, provided the requirements of 50 CFR parts 13, 14,
and 23 have been met.
(7) Import/export of ivory for law enforcement purposes. Raw or
worked ivory may be imported into and worked ivory may be exported from
the United States by an employee or agent of a Federal, State, or
tribal government agency for law enforcement purposes, without a
threatened species permit issued under Sec. 17.32, provided the
requirements of 50 CFR parts 13, 14, and 23 have been met. It is
unlawful to sell or offer for sale in interstate or foreign commerce
and to deliver, receive, carry, transport, or ship in interstate or
foreign commerce and in the course of a commercial activity any African
elephant ivory that was imported into or exported from the United
States for law enforcement purposes. The exception in paragraph (e)(3)
of this section regarding manufactured items containing de minimis
quantities of ivory does not apply to ivory imported or exported under
this paragraph (e)(7) for law enforcement purposes.
(8) Import/export of ivory for genuine scientific purposes. (i) Raw
or worked ivory may be imported into and worked ivory may be exported
from the United States for genuine scientific purposes that will
contribute to the conservation of the African elephant, provided:
(A) It is accompanied by a threatened species permit issued under
Sec. 17.32; and
(B) The requirements of 50 CFR parts 13, 14, and 23 have been met.
(ii) It is unlawful to sell or offer for sale in interstate or
foreign commerce and to deliver, receive, carry, transport, or ship in
interstate or foreign commerce and in the course of a commercial
activity any African elephant ivory that was imported into or exported
from the United States for genuine scientific purposes. The exception
in paragraph (e)(3) of this section regarding manufactured items
containing de minimis quantities of ivory does not apply to ivory
imported or exported under this paragraph (e)(8) for genuine scientific
purposes.
(9) Antique ivory. Antiques (as defined in paragraph (e)(1) of this
section) are not subject to the provisions of this rule. Antiques
containing or consisting of ivory may therefore be imported into or
exported from the United States without a threatened species permit
issued under Sec. 17.32, provided the requirements of 50 CFR parts 13,
14, and 23 have been met. Also, the provisions and prohibitions under
the African Elephant Conservation Act (16 U.S.C. 4201 et. seq.) apply,
regardless of the age of the item. Antiques that consist of or contain
raw or worked ivory may similarly be sold or offered for sale in
interstate or foreign commerce and delivered, received, carried,
transported, or shipped in interstate or foreign commerce in the course
of a commercial activity without a threatened species permit issued
under Sec. 17.32.
* * * * *
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-18487 Filed 7-27-15; 8:45 am]
BILLING CODE 4310-55-P