Endangered and Threatened Wildlife and Plants; Revision of the Section 4(d) Rule for the African Elephant (Loxodonta africana, 36387-36419 [2016-13173]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 81, Number 108 (Monday, June 6, 2016)]
[Rules and Regulations]
[Pages 36387-36419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13173]



[[Page 36387]]

Vol. 81

Monday,

No. 108

June 6, 2016

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





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

Federal Register / Vol. 81 , No. 108 / Monday, June 6, 2016 / Rules 
and Regulations

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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: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising 
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 to fuel the growing illegal trade in ivory. The African 
elephant (Loxodonta africana) was listed as threatened under the ESA 
effective June 11, 1978, and at the same time a rule was promulgated 
under section 4(d) of the ESA (a ``4(d) rule'') to regulate import and 
use of specimens of the species in the United States. This final rule 
updates the current 4(d) rule with measures that are appropriate for 
the current conservation needs of the species. We adopted 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.

DATES: This rule is effective July 6, 2016.

FOR FURTHER INFORMATION CONTACT: Craig Hoover, Chief, 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: 

Executive Summary

Why We Need To Publish a Final Rule

    When a species is listed as threatened, section 4(d) of the ESA 
gives discretion to the Secretary of the Interior to issue regulations 
that he or she ``deems necessary and advisable to provide for the 
conservation of such species.'' In response to an unprecedented 
increase in poaching of elephants across Africa and the escalation of 
the illegal trade in ivory, we reevaluated the provisions of the 
existing ESA 4(d) rule for the African elephant, and, on July 29, 2015, 
we published a proposed rule to revise the 4(d) rule (80 FR 45154). We 
are revising the 4(d) rule by adopting measures that are necessary and 
advisable for the current conservation needs of the species, based on 
our evaluation of the current threats to the African elephant and the 
comments received from the public. The poaching crisis is driven by 
demand for elephant ivory. This final rule will allow us to more 
strictly regulate trade in African elephant ivory and help to ensure 
that the U.S. ivory market is not contributing to the poaching of 
elephants in Africa. This action is consistent with recommendations 
adopted by the Parties to the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES or the Convention) in 
March 2013 to help curb the illegal killing of elephants and illegal 
trade in ivory, 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.

What is the effect of this final rule?

    We are revising the 4(d) rule for the African elephant to increase 
protection and benefit the conservation of African elephants by more 
strictly controlling U.S. trade in ivory, without unnecessarily 
restricting activities that have no conservation effect or are strictly 
regulated under other law. The final rule prohibits import and export 
of African elephant ivory with limited exceptions for: Musical 
instruments, items that are part of a traveling exhibition, and items 
that are part of a household move or inheritance when specific criteria 
are met; and ivory for law enforcement or genuine scientific purposes. 
With regard to import, these exceptions remain prohibited under the 
African Elephant Conservation Act (AfECA) import moratorium (54 FR 
24758, June 9, 1989). However, under Director's Order 210, as amended 
on May 15, 2014, as a matter of law enforcement discretion, the Service 
will not enforce the AfECA moratorium with respect to these limited 
exceptions. Antiques (as defined under section 10(h) of the ESA) 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. However, import of most African elephant ivory, 
including antique ivory, remains prohibited under the AfECA import 
moratorium. This final rule allows for import of sport-hunted trophies 
but limits the number of sport-hunted African elephant trophies 
imported into the United States to two per hunter per year. The 
prohibition on export of raw ivory in the current 4(d) rule is 
maintained in the final rule. Interstate and foreign commerce in 
African elephant ivory is prohibited by the final rule except for items 
that qualify as ESA antiques and certain manufactured or handcrafted 
items that contain a small (de minimis) amount of ivory and meet 
specific criteria.
    The final rule prohibits take of live African elephants in the 
United States, which will help to ensure that elephants held in 
captivity receive an appropriate standard of care. As stated in the 
proposed rule (80 FR 45154, July 29, 2015), 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. (This 
prohibition is the same as the prohibition on take of Asian elephants, 
which has been in place since 1976 when the Asian elephant was listed 
under the ESA.) Trade in live African elephants and African elephant 
parts and products other than ivory is allowed under the final rule 
provided the requirements in 50 CFR parts 13, 14, and 23 have been met.

The Basis for Our Action

    The Service reevaluated U.S. domestic controls, given the current 
poaching crisis in Africa and the associated increase in illegal trade 
in ivory, recent CITES recommendations, and evidence that substantial 
quantities of illegal ivory are making their way into U.S. markets. We 
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 final rule will 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 for certain manufactured or 
handcrafted items containing ivory that meet specific criteria. The 
final rule will

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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 final rule 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.

Background

    In the United States, the African elephant is primarily protected 
and managed under the ESA (16 U.S.C. 1531 et seq.); CITES (27 U.S.T. 
1087), as implemented in the United States through the ESA; and the 
AfECA (16 U.S.C. 4201 et seq.). The ESA designates responsibility for 
CITES implementation to the Secretary of the Interior, acting through 
the U.S. Fish and Wildlife Service.
    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 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 
permitting 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 currently has 
182 Parties (countries or regional economic integration organizations 
that have ratified the Convention), including the United States. The 
aim of CITES is to regulate international trade in listed animal and 
plant species, including their parts and products, to ensure the trade 
is legal and does not threaten the survival of species. CITES regulates 
both commercial and noncommercial international trade through a system 
of permits and certificates that must be presented when leaving and 
entering a country with CITES specimens. Species are listed in one of 
three appendices, which provide different levels of protection. In some 
circumstances, different populations of a species are listed at 
different levels. Appendix I includes species that are threatened with 
extinction and are or may be affected by trade. The Convention states 
that Appendix-I species must be subject to ``particularly strict 
regulation'' and trade in specimens of these species should 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 findings necessary for issuance of CITES permits, 
encouraging assessment and analysis of the population status of species 
in trade and the effects of international trade on wild populations.
    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,

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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 legal commercial trade in African elephant ivory.
    In 1997, based on proposals submitted by Botswana, Namibia, and 
Zimbabwe and the report of a Panel of Experts (which concluded, among 
other things, that populations in these countries were stable or 
increasing and that poaching pressure was low), the CITES Parties 
agreed to transfer the African elephant populations in these three 
countries to CITES Appendix II. The Appendix-II listing included an 
annotation that allowed noncommercial export of hunting trophies, 
export of live animals to appropriate and acceptable destinations, 
export of hides from Zimbabwe, and noncommercial export of leather 
goods and some ivory carvings from Zimbabwe. It also allowed for a one-
time export of raw ivory to Japan (which took place in 1999), once 
certain conditions had been met. All other African elephant specimens 
from these three countries were deemed to be specimens of a species 
listed in Appendix I and regulated accordingly.
    The African elephant population of South Africa was transferred 
from CITES Appendix I to Appendix II in 2000, with an annotation that 
allowed trade in hunting trophies for noncommercial purposes, trade in 
live animals for reintroduction purposes, and trade in hides and 
leather goods. At that time, the Panel of Experts reviewing South 
Africa's proposal concluded, among other things, that South Africa's 
elephant population was increasing, that there were no apparent threats 
to the status of the population, and that the country's anti-poaching 
measures were ``extremely effective.'' Since then, the CITES Parties 
have revised the Appendix-II listing annotation 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.
    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 the specimens 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).
    Proposed rule and comments received. On July 29, 2015, we published 
a proposed rule (80 FR 45154) to revise the rule for the African 
elephant promulgated under section 4(d) of the ESA. We accepted public 
comments on the proposed rule for 60 days, until September 28, 2015.

[[Page 36391]]

    We received more than 1,349,000 comments in response to the 
proposed rule, including eight petitions with more than 1,342,000 
signatures (one petition also included drawings by children). All eight 
petitions were in strong support of strengthening elephant ivory 
regulatory controls. Counting each of the petitions as one substantive 
comment, about 500 of the comments received were substantive. We 
received comments from individuals, organizations, and one State 
natural resource agency, including substantive comments from: 
Musicians, musical instrument manufacturers, and music organizations; 
antiques dealers (including auction houses) and collectors; museums and 
museum groups; hunting groups and knife and gun rights organizations; 
scrimshanders and other artisans working with ivory; a State natural 
resource agency; conservation/environmental nongovernmental 
organizations; organizations dedicated to promoting trade in ivory; and 
concerned citizens.
    Requests for extension of the comment period. Some commenters 
requested that we extend the comment period for the proposed rule 
beyond 60 days. Since we signaled our intent to revise the 4(d) rule in 
2014, the Service has been transparent about what we expected to 
propose. We met with a number of individuals and groups representing a 
range of interests, including musicians, orchestras, instrument 
manufacturers, antique dealers and collectors, auction houses, museums, 
small businesses, and conservation, hunting, and shooting interests. We 
also participated in listening sessions on this proposal, hosted by the 
Office of Management and Budget. Because of the extensive consultation 
and public outreach that had already occurred, we decided not to extend 
the 60-day comment period.
    General comments. It is clear from the comments we received that 
there are strongly held views in the United States on the conservation 
of elephants and trade in elephant ivory. Regardless of perspectives 
and positions on trade in ivory, there is overwhelming concern for 
elephant populations and a belief that the U.S. Government should take 
steps to protect elephants in Africa. Many commenters urged us to adopt 
strong regulations and to ``shut down'' the ivory trade to protect 
elephants; others argued that the U.S. ivory market is not the problem 
and that we should focus our efforts on combating poaching and illegal 
trade in Africa and Asia. Some commenters provided information in 
support of their positions, some offered specific suggestions and 
amendments to the proposed regulatory text, and others simply urged us 
to ``do the right thing'' to protect elephants. Some commenters 
commended the Service and the Obama Administration for taking steps to 
more strictly regulate trade in elephant ivory and for showing 
leadership in the fight against elephant poaching and wildlife 
trafficking; others asserted that the revisions proposed are unduly 
burdensome, that we have exceeded our statutory authority, and that 
there is no evidence that these restrictions will have any substantial 
effect on elephant poaching. In developing this final rule, we 
evaluated the comments and information received. We appreciate the 
careful consideration given to this proposal by so many groups and 
individuals. A summary and analysis of specific comments follows:
    Comments on other types of ivory. We received a number of comments 
from individuals, including scrimshanders, who were concerned about the 
impact of this rule on trade in ivory other than African elephant 
ivory, including mammoth ivory. This final rule will 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 marine species, such as walrus, is 
regulated separately under the Marine Mammal Protection Act (16 U.S.C. 
1361 et seq.). Ivory from extinct species, such as mammoth, is not 
regulated under statutes implemented by the Service. The only type of 
ivory regulated under this final rule is African elephant ivory.
    Comments on legal possession of ivory. Some commenters seemed to 
think that this final rule would make it illegal to own ivory and would 
make the ivory that they currently legally own or possess subject to 
seizure or forfeiture. This is simply not true. Nothing in this final 
rule impacts a person's ability to own or possess legally acquired 
African elephant ivory.
    Comments on the listing status of the African elephant. A number of 
commenters stated their belief that the African elephant should be 
reclassified under the ESA from a threatened species to an endangered 
species. Some also urged us to recognize savanna and forest elephants 
as two different species of African elephant. We consider these 
comments to be beyond the scope of this final rule. The Service has 
been petitioned to reclassify the African elephant as endangered and to 
recognize two species of African elephants and classify them both as 
endangered. Review of those petitions, through a process separate from 
this rulemaking, is ongoing.
    Comments on trade in African elephant parts and products other than 
ivory and sport-hunted trophies. Under the final rule, African elephant 
parts and products other than ivory and sport-hunted trophies may be 
imported into or exported from the United States, and sold or offered 
for sale in interstate and foreign commerce, without an ESA threatened 
species permit, provided our CITES and general permitting and import/
export requirements in 50 CFR parts 13, 14, and 23 are met. 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, we elected not to extend the relevant section 9(a)(1) 
prohibitions to these activities involving live elephants and elephant 
parts and products other than ivory and sport-hunted trophies, and thus 
no separate ESA threatened species permit is required. 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 sport-hunted trophies would 
add no meaningful protection for the species and would be an 
unnecessary overlay of authorization on top of existing documentation 
that already ensures that the import or export is legal and is not 
detrimental to the species.
    (1) Comment: Some commenters objected to the provisions in the 
proposed rule for trade in parts and products other than ivory. They 
argued for a ban on commercial sale of all elephant items, including 
non-ivory parts and products, asserting that allowing any elephant 
parts to remain in the market creates confusion.
    Response: We disagree. The poaching crisis is driven by demand for 
elephant ivory. As we indicated in the preamble to the proposed rule, 
there is no information to indicate that 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. Thus, we determined it is not necessary and advisable to propose 
additional restrictions on commercial activities related to African 
elephant parts and products other than ivory and sport-hunted trophies. 
We will continue to monitor such activities and may reevaluate these 
provisions in the future if needed.
    Comments on import of ivory into the United States. Under the final 
rule, import of African elephant ivory will be

[[Page 36392]]

limited to sport-hunted trophies (no more than two per hunter per 
year), ivory for law enforcement or genuine scientific purposes, and 
certain worked ivory that meets specific conditions and is contained in 
a musical instrument, is part of a traveling exhibition, or is part of 
a household move or inheritance.
    (2) Comment: Many commenters believe that the provisions in the 
proposed rule are not strict enough and that all import of ivory should 
be prohibited, including sport-hunted trophies.
    Response: We are strictly regulating import of African elephant 
ivory. However, there are circumstances under which import of African 
elephant ivory into the United States may benefit conservation of 
African elephants, including import for law enforcement purposes and 
for genuine scientific purposes, or have no conservation effect. We 
have elected to establish exceptions for those activities that we do 
not believe have an impact on conservation. The final rule allows the 
import of ivory for law enforcement and genuine scientific purposes 
that would benefit the conservation of elephants, as well as import of 
sport-hunted trophies (when the proper determinations have been made) 
and import of ivory that meets specific conditions and is contained in 
a musical instrument, is part of a museum or other exhibition, or is 
part of a household move or inheritance. This rule allows us to 
strictly limit import of ivory in the vast majority of scenarios that 
may be contributing to the illegal killing of elephants and the illegal 
trade in ivory, while allowing import in only certain narrow 
circumstances or purposes that have no conservation effect or that may 
benefit conservation. These exceptions remain prohibited under the 
AfECA import moratorium. However, under Director's Order 210, as 
amended on May 15, 2014, as a matter of law enforcement discretion, the 
Service will not enforce the AfECA moratorium with respect to these 
limited exceptions. (For further discussion on sport-hunted trophies, 
see Comments on import of sport-hunted trophies, below.)
    (3) Comment: Commenters stated their support of the Service's 
proposal to ban the import of antique ivory under its AfECA authority, 
noting the import of these items is already banned pursuant to the 
AfECA. The Service proposes to allow noncommercial import of certain 
items, including law enforcement and scientific items, musical 
instruments, items as part of a household move or inheritance, and 
exhibition items, where it can be demonstrated that the ivory was 
removed from the wild prior to 1976. Technically, the import of these 
items is already banned pursuant to the AfECA. Understanding the 
Service's desire to make narrow exceptions, particularly for scientific 
and law enforcement purposes, if these import exemptions are maintained 
in the final rule, the Service should also maintain all other proposed 
limitations on imports (including the ban on post-1989 antique imports 
under AfECA and the ban on sale of antiques imported before 1982) ``to 
constrain import and sale and much as possible.''
    Response: We wish to clarify that we are not invoking authority 
under AfECA to ban the import of antique ivory. Rather, as commenters 
note, this activity is already banned pursuant to AfECA. The AfECA 
moratorium on import of ivory other than sport-hunted trophies remains 
in place. Thus, noncommercial import of certain items, including law 
enforcement and scientific items, musical instruments, items as part of 
a household move or inheritance, and exhibition items, where it can be 
demonstrated for each such item that the ivory was removed from the 
wild prior to 1976, remains prohibited under the AfECA import 
moratorium. However, under Director's Order 210, as amended on May 15, 
2014, as a matter of law enforcement discretion, the Service will not 
enforce the AfECA moratorium with respect to these limited exceptions.
    Additionally, we have clarified in Sec.  17.40(e)(9) that ESA 
antiques are exempt from the provisions of this 4(d) rule. In that same 
paragraph, we have also pointed to the provisions and prohibitions of 
the AfECA, which apply regardless of the age of the item. So, although 
we cannot and have not in this 4(d) rule prohibited import of African 
elephant ivory that qualifies as an antique under the ESA, the import 
of antique ivory is prohibited under the AfECA moratorium as 
established in our notice issued on June 9, 1989 (54 FR 24758). With 
regard to sale of antique ivory within the United States, Appendix 1 to 
Director's Order 210 clarifies how the Service implements the ESA 
antiques exception. Appendix 1 reminds the reader that the ESA allows 
the import and other activities without an ESA permit of an item that: 
(a) Is not less than 100 years of age; (b) is composed in whole or in 
part of any endangered species or threatened species listed under 
section 1533 of the Act; (c) has not been repaired or modified with any 
part of any such species on or after December 28, 1973; and (d) is 
entered at a port designated for the import of ESA antiques. The 
Appendix further clarifies that the Service will not take enforcement 
action against items that meet the first three elements (a, b, and c) 
above and were imported prior to September 22, 1982 (when the ESA 
antique ports were designated) or were created in the United States and 
never imported. Appendix 1 also reminds the reader that anyone claiming 
the benefit of an exemption from ESA prohibitions has the burden of 
proving that the exemption is applicable.
    (4) Comment: Import of antiques should be allowed. The Service has 
exceeded its statutory authority by banning all ivory imports. Congress 
never intended to prevent legitimate antiques from entering or exiting 
the country, which is why it established an antique exception as part 
of the 1978 amendments to the ESA.
    Response: See the response to (3) above.
    (5) Comment: Import of ivory by U.S. museums should be allowed.
    Response: The final rule allows the import by museums of African 
elephant ivory as part of a traveling exhibition when certain 
requirements are met (See Sec.  17.40(e)(5)(ii).). This activity 
remains prohibited under the AfECA import moratorium. However, under 
Director's Order 210, as amended on May 15, 2014, as a matter of law 
enforcement discretion, the Service will not enforce the AfECA 
moratorium where the criteria contained in Director's Order 210 are 
met. See also Comments on treatment of museums, below.
    Comments on import of sport-hunted trophies. Although some who 
commented on the provisions for import of sport-hunted trophies were 
opposed to the proposed limit on the number that can be imported by a 
hunter in a given year and the requirement for an ESA import permit for 
trophies from Appendix-II populations, most who commented on this issue 
expressed strong opposition to allowing import into the United States 
of any African elephant sport-hunted trophies.
    (6) Comment: Many commenters stated that, while limiting import of 
sport-hunted African elephant trophies to two per hunter per year is an 
improvement over the current situation, import of sport-hunted trophies 
should be eliminated entirely. Others asserted that sport hunting is 
barbaric and that the time has come to eliminate the taking of African 
elephants by Americans for sport. Some commenters argued that we need 
to provide further explanation for our proposal to allow a hunter to 
import two African elephant trophies per year and that one trophy would 
and should suffice. Some

[[Page 36393]]

asserted that allowing import of two sport-hunted African elephant 
trophies per hunter per year is unsustainable for a species on the 
brink of extinction.
    Response: The ESA does not prohibit U.S. hunters from traveling to 
other countries and taking threatened species (although authorization 
may be required under the ESA to import the sport-hunted trophy into 
the United States). AfECA specifically allows for import of sport-
hunted trophies of elephants legally taken in a country that has 
submitted an ivory quota, and CITES provides guidance (in Resolution 
Conf. 10.10 (Rev. CoP16), Trade in elephant specimens) for trade in 
sport-hunted African elephant trophies, including on the establishment 
by range countries of an annual export quota, as part of the management 
of the population. Well-regulated trophy hunting is not a significant 
factor in the decline of elephant populations. We continue to believe 
that sport hunting, as part of a sound management program, can provide 
benefits to the conservation of the species. Before allowing import of 
African elephant sport-hunted trophies, we decide whether we can make 
the determinations necessary for import under CITES and the ESA by 
evaluating information provided by range countries. The Service 
determined in April 2014 that, based on the information available to 
us, import of sport-hunted trophies from Tanzania and Zimbabwe could 
not be allowed because the killing of African elephants for trophies in 
those countries does not meet the enhancement standard under the 4(d) 
rule. We reached the same determination based on the information 
available in 2015. We continue to evaluate requests for import of 
sport-hunted trophies carefully under CITES requirements and the ESA 
enhancement finding required under this and the previous 4(d) rule.
    As we indicated in the preamble to the proposed rule, we are 
limiting the number of sport-hunted African elephant trophies that may 
be imported into the United States to address a small number of 
circumstances in which U.S. hunters have participated in elephant 
culling operations and imported, as sport-hunted trophies, a large 
number of elephant tusks from animals taken as part of the cull. This 
practice has resulted, in some cases, in the import of commercial 
quantities of ivory as sport-hunted trophies. Sport hunting is meant to 
be a personal, noncommercial activity, and engaging in hunting that 
results in acquiring quantities of ivory that exceed what would 
reasonably be expected for personal use and enjoyment is inconsistent 
with sport hunting as a noncommercial activity. In evaluating an 
appropriate limit for personal use, we considered actions taken by the 
CITES Parties in recognition of the need to ensure that imports of 
certain other hunting trophies are for personal use only. In three 
different resolutions, the CITES Parties have agreed to limit annual 
imports of hunting trophies of leopards (no more than two), markhor (no 
more than one), and black rhinoceros (no more than one). All three of 
the resolutions containing these annual import limits (Resolution Conf. 
10.14 (Rev. CoP16), Quotas for trade in leopard hunting trophies and 
skins for personal use, Resolution Conf. 10.15 (Rev. CoP14), 
Establishment of quotas for markhor hunting trophies, and Resolution 
Conf. 13.5 (Rev. CoP14), Establishment of export quotas for black 
rhinoceros hunting trophies), recommend (among other things) that the 
Management Authority of the State of import be satisfied that the 
trophies are not to be used for primarily commercial purposes if they 
are being imported as personal items that will not be sold in the 
country of import and the owner imports no more than one or two 
(depending on the species) trophies in any calendar year. Based on past 
practice under CITES and the number of elephant trophies imported each 
year by the vast majority of U.S. hunters who engage in elephant hunts, 
we consider two trophies per hunter per year to be an appropriate upper 
limit for the personal use of the hunter and we believe that this limit 
addresses our concern. We do not have information to indicate that 
allowing the import of two trophies per hunter per year would result in 
import of commercial quantities of ivory or would not be appropriate 
for personal use. Although some commenters asserted that one trophy 
should be enough, they did not provide further information in support 
of this position (aside from the general comments that hunting is not 
conservation). We anticipate this change will impact fewer than 10 
hunters per year. We believe 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 consistent with sport hunting as a 
personal, noncommercial activity and that commercial quantities of 
ivory are not imported under the guise of sport hunting.
    (7) Comment: Some commenters stated that allowing continued import 
of ivory when it is a trophy, instead of ``raw or worked'' ivory, makes 
little sense. Some asserted that trophies consisting entirely or 
partially of tusks are one of the few legal methods still available for 
bringing ivory into the United States and that limiting the number of 
trophy imports does not adequately address the problem as there is 
nothing to stop multiple hunters from colluding to bring in just as 
much ivory by working in concert. One commenter stated that, with the 
proposed prohibitions, the value of ivory imported as part of a sport-
hunted trophy will significantly increase, which could lead to an 
increase in trophy hunting with the intent to illegally sell the trophy 
after import. Setting a zero import quota on African elephant trophies 
is the most efficient and effective way to ensure that the system is 
not gamed as a cover for the illegal ivory trade.
    Response: Please see the response to (6) above. Although the 
scenario described by these commenters is possible, we have seen no 
evidence that this practice is occurring and consider the risk of such 
collusion to be low. In addition, as the commenters correctly state, 
selling the trophy ivory after import into the United States would be 
illegal under both our CITES regulations (50 CFR 23.55) and this final 
rule. We believe the limitations imposed on the import of sport-hunted 
trophies in this rule and other laws and regulations are sufficient to 
ensure that the commenters' concerns are not realized. As we continue 
to monitor the import of sport-hunted trophies, we may reevaluate these 
provisions in the future, if necessary.
    (8) Comment: The world is a different place than it was when 
Congress passed the AfECA, including its exemption for import of sport-
hunted trophies. Political turmoil, war, terrorism, and corruption all 
contribute to the ability of buyers to acquire raw ivory in the form of 
trophies. While section 4222(e) of AfECA includes an exemption for 
legally taken sport-hunted trophies, section 4241 of AfECA expressly 
states that the Service's authority is in addition to and does not 
affect its legal authority under the ESA. The U.S. Fish and Wildlife 
Service has broad authority to regulate trophy imports.
    Response: We agree that the Service has broad authority to regulate 
import of sport-hunted trophies of listed species, and we do regulate 
such imports, including through the provisions in this final rule. We 
believe that the restrictions on import of sport-hunted elephant 
trophies in this final rule are those that are necessary and advisable 
for the conservation of the African elephant.

[[Page 36394]]

    (9) Comment: The U.S. Fish and Wildlife Service has banned the sale 
of sport-hunted trophy ivory for many years, but it is still available 
at auction, indicating that the ban is neither respected nor enforced.
    Response: There is not, in fact, currently a ban on the sale of all 
sport-hunted African elephant ivory. The current 4(d) rule for the 
African elephant prohibits sale or offer for sale of ``any sport-hunted 
trophy imported into the United States in violation of permit 
conditions'' [emphasis added], and our CITES regulations (at 50 CFR 
23.55) prohibit sale of sport-hunted African elephant trophies imported 
after January 18, 1990 (when the African elephant was listed in CITES 
Appendix I). With this final rule, we are prohibiting any sale of 
African elephant trophies in interstate or foreign commerce, with the 
exception of those that qualify as ESA antiques (see paragraphs (e)(6) 
and (e)(9) of the final rule).
    (10) Comment: Appreciate that the Service is finally requiring an 
ESA import permit to import any African elephant sport-hunted trophy. 
It is imperative that the Service undertake an ESA enhancement analysis 
for sport-hunted trophies and that the public notice and comment 
requirements in section 10 of the ESA and the requirement that the 
Service make application information available to the public be 
retained in any 4(d) rule for African elephants.
    Response: The commenter is correct that, under this final rule, an 
ESA import permit will be required for import of any African elephant 
sport-hunted trophy and that we will not issue such a permit unless we 
have made a positive enhancement finding. While section 10(c) of the 
ESA requires that we publish notice in the Federal Register of each 
application involving an exemption or permit made under section 10, 
this is not the case for applications involving threatened species, 
which are not subject to the section 9 prohibitions and thus, the 
notice and comment requirements in section 10(c). Nothing in this final 
rule changes those requirements.
    (11) Comment: The requirements for ``enhancement findings'' are not 
the same as the requirements for CITES ``non-detriment findings.''
    Response: We agree. The current 4(d) rule for the African elephant, 
at 50 CFR 17.40(e)(3)(iii), allows the import of sport-hunted trophies 
provided that, among other things, ``a determination is made that the 
killing of the animal whose trophy is intended for import would enhance 
survival of the species.'' This provision has been in place since 1992 
and will remain in place with this final rule. It requires that we make 
an ESA enhancement determination for import of any African elephant 
sport-hunted trophy, including those from CITES Appendix-II 
populations. Information on factors considered in making an ESA 
enhancement finding is found in 50 CFR 17.32(a). In addition to this 
ESA finding, for trophies from CITES Appendix-I populations we must 
also issue a CITES import permit. Before we can issue a CITES import 
permit we must be able to determine that the import is for purposes 
that are not detrimental to the survival of the species and that the 
specimen is not to be used for primarily commercial purposes. 
Information on factors considered in making a CITES non-detriment 
finding is contained in 50 CFR 23.61. Information on factors considered 
in determining whether a specimen is to be used for primarily 
commercial purposes is found in 50 CFR 23.62. The commenter is correct 
that the determinations needed for issuance of a CITES import permit 
are different from, and in addition to, the ESA enhancement finding.
    (12) Comment: The Service has previously asserted that trophy 
hunting of imperiled species can have a positive overall impact on 
species conservation. There is minimal data showing this to be the 
case, particularly for elephants. Proponents of sport hunting as a 
conservation tool often cite two interrelated documents as alleged 
``proof'' that sport-hunting can be a useful tool for conservation--the 
IUCN SSC Guiding Principles on Trophy Hunting as a Tool for Creating 
Conservation Incentives and CITES Resolution Conf. 2.11, regarding 
trade in hunting trophies of Appendix-I species. The primary theory 
behind these documents is that hunting can directly raise funding for 
conservation efforts in countries with otherwise limited resources; 
however, this possible outcome does not overcome the long-term negative 
effect of hunting--allowing legalized killing of these animals 
continues to decrease their overall chance of survivability as a 
species in the wild.
    Response: We continue to believe that well-managed trophy hunting 
can benefit conservation and disagree that there is little basis for 
this assertion. Trophy hunting can generate funds to be used for 
conservation, including for habitat protection, population monitoring, 
wildlife management programs, and law enforcement efforts. The IUCN 
Guiding Principles on Trophy Hunting as a Tool for Creating 
Conservation Incentives (Ver.1.0, August 2012) state that well-managed 
trophy hunting can ``assist in furthering conservation objectives by 
creating the revenue and economic incentives for the management and 
conservation of the target species and its habitat, as well as 
supporting local livelihoods'' and, further, that well-managed trophy 
hunting is ``often a higher value, lower impact land use than 
alternatives such as agriculture or tourism.'' When a trophy hunting 
program incorporates the following Guiding Principles, IUCN considers 
that trophy hunting can serve as a conservation tool: Biological 
sustainability; net conservation benefit; socio-economic-cultural 
benefit; adaptive management--planning, monitoring, and reporting; and 
accountable and effective governance. We support this approach.
    Lindsey et al. (2007), in their paper on the economic and 
conservation significance of the trophy hunting industry in sub-Saharan 
Africa, state their belief that, from a conservation perspective, ``the 
provision of incentives which promote wildlife as a land use is the 
single most important contribution of the trophy hunting industry.'' In 
addition, they note that trophy hunting generates revenues in areas 
where alternatives, such as ecotourism, may not be viable. More 
recently, Di Minin et al. (2016) assert that trophy hunting ``strongly 
contributes'' to conservation in sub-Saharan Africa, where large areas 
currently allocated to use for trophy hunting support important 
biodiversity. They also note that, if revenue cannot be generated from 
trophy hunting, these natural habitats will be converted to other forms 
of land use. While recognizing that the degree to which trophy hunting 
contributes to conservation is a subject of debate, Mallon (2013), in 
his report on trophy hunting of CITES-listed species in Central Asia, 
states that ``well[hyphen]run hunting concessions have an economic 
interest in maintaining the resource (i.e., conserving the species) so 
will also aim to manage the area to conserve high-quality habitat that 
supports high numbers of the hunting species, and also to prevent 
unregulated use by others (poaching, overgrazing).'' Naidoo et al. 
(2015) describe the complementary benefits of tourism and hunting to 
communal conservancies in Namibia.
    We are, of course, aware that not all trophy hunting is part of a 
well-managed, well-run program, and we evaluate import of sport-hunted 
trophies carefully to ensure that all CITES and ESA requirements are 
met. As noted previously, the Service currently does not allow import 
of sport-hunted

[[Page 36395]]

African elephant trophies from Tanzania and Zimbabwe because, based on 
the information available, we were unable to make the necessary 
determinations under CITES and the ESA in 2014 and 2015. Under this 
final rule, we will continue to require an ESA enhancement finding for 
import of all African elephant sport-hunted trophies and will require 
issuance of a threatened species permit for all such trophies, which 
will allow us to carefully evaluate trophy imports in accordance with 
legal standards and the conservation needs of the species.
    (13) Comment: Trophy hunting is a very big industry, and trophy 
imports are unquestionably commercial. Trophy hunters pay tens of 
thousands of dollars for hunting licenses, lodges, guides, etc., yet 
trophy hunting continues to be categorized as noncommercial.
    Response: We recognize that trophy hunters spend money on licenses, 
guides, travel, lodging, etc., and agree that sport hunts are a source 
of income for guides, outfitters, governments, and others in many range 
countries (and that a portion of the money generated by these hunts is 
often directed to elephant conservation efforts). However, the import 
of sport-hunted trophies for the personal use of the hunter is, and has 
long been, considered a noncommercial activity both under the ESA and 
by the CITES Parties. With this final rule, we are prohibiting any sale 
of African elephant trophies in interstate or foreign commerce, with 
the exception of those that qualify as ESA antiques, which will ensure 
that these imports are not commercialized.
    (14) Comment: Some commenters were opposed to the restriction on 
import of sport-hunted trophies and to the requirement for ESA import 
permits for African elephant sport-hunted trophies from Appendix-II 
populations. One commenter asserted that those populations were 
expressly transferred from Appendix I to Appendix II to reduce import 
permitting costs, burden, and delays. The same commenter expressed 
particular opposition to limiting the number of trophies that could be 
imported from Appendix-I populations, as Appendix-I import permit 
conditions state that the ivory may not be sold. Some commenters stated 
that we had not indicated that U.S. sport hunters are a source of the 
poaching or trafficking problems so there is no reasonable 
justification for our assertion that individual permit requirements 
will help reduce poaching and trafficking of elephants.
    Response: The African elephant populations in Botswana, Namibia, 
South Africa, and Zimbabwe were moved from Appendix I to Appendix II 
because they met the criteria for downlisting to Appendix II. These 
criteria do not include or contemplate reduction of permitting costs or 
burdens. The decisions to downlist these populations occurred at a time 
(1997 for Botswana, Namibia, and Zimbabwe; 2000 for South Africa) when 
the African elephant populations in these countries were increasing and 
poaching was generally not a concern. As stated previously, we are 
imposing limits on annual imports of sport-hunted trophies to ensure 
that U.S. hunters are not importing commercial quantities of ivory, as 
has happened in the recent past. We are aware of circumstances under 
which U.S. hunters have participated in elephant culling operations and 
imported the ivory from those culls as sport-hunted trophies. We 
consider this practice to be inconsistent with sport hunting, which is 
meant to be a personal, noncommercial activity. While the commenters 
are correct that we do not believe that U.S. sport hunters are involved 
in poaching and trafficking of ivory, we are concerned about commercial 
quantities of ivory imported through sport-hunting contributing to the 
problem, particularly in light of our concerns about the status of 
African elephant populations and the inadequacies of conservation 
management programs in place in many African elephant range countries. 
Authorizing import of all sport-hunted trophies through threatened 
species enhancement permits will allow us to more carefully evaluate 
trophy imports in accordance with legal standards and the conservation 
needs of the species.
    (15) Comment: The permit requirement will not benefit hunters, 
contrary to what the Service has suggested. The ability to import will 
become subject to the discretion of U.S. officials responsible for 
reviewing the paperwork involved in the permit process, and any minor, 
nonsubstantive inaccuracy or error could result in delays, confiscation 
of the trophy, bureaucratic and legal obstacles, and penalties.
    Response: We disagree. See the response to (14) above. Although we 
are changing the process for obtaining authorization for import, we are 
not changing the standards for the decision or the enhancement finding. 
In addition, under current regulations, the import of elephant sport-
hunted trophies requires the Service to make a determination regarding 
whether the killing of the elephant whose trophy is intended for import 
would enhance the survival of the species, the trophy must be declared 
to the Service at the time of import, and the trophy must be made 
available for inspection. Issuance of a permit confirming that an 
enhancement determination has been made is unlikely to result in any 
fundamental change in how trophies are treated upon import.
    (16) Comment: The current enhancement requirement is not lawful. It 
is wholly based on a perceived enhancement requirement under CITES 
Resolution Conf. 2.11 for Appendix I sport-hunted trophies, not 
Appendix II as is proposed.
    Response: The requirement that we make a determination regarding 
whether the killing of the elephant whose trophy is intended for import 
would enhance the survival of the species is based on our ESA 
implementing regulations (50 CFR 17.32), and is in addition to CITES 
requirements. It is not based on the recommendations in Resolution 
Conf. 2.11, which addresses the making of CITES non-detriment findings 
for trade in hunting trophies of Appendix-I species. (See the response 
to (11) above.)
    (17) Comment: Sufficient reason has not been given for overriding 
the purpose and intent of section 9(c)(2) of the ESA, which exempts 
hunting trophies of threatened Appendix-II species from import permit 
requirements, and the provisions of the AfECA confirming specifically 
the favored treatment of elephant hunting trophies.
    Response: We disagree. Section 9(c)(2) (16 U.S.C. 1538(c)(2)) of 
the ESA and our ESA implementing regulations at 50 CFR 17.8 provide a 
limited exemption for the import of some threatened species, which can 
be used by hunters to import sport-hunted trophies. Import of 
threatened species that are also listed under CITES Appendix II is 
presumed not to be in violation of the ESA if the import 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 the species' conservation and survival would 
benefit from the granting of ESA authorization prior to import.
    In 1997 and 2000, when the four populations of African elephants 
were transferred from CITES Appendix I to CITES Appendix II, 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

[[Page 36396]]

elephant sport-hunted trophies. Requiring issuance of threatened 
species enhancement permits under 50 CFR 17.32 for the import of any 
African elephant hunting trophy is a change to the procedure for 
issuing ESA authorization but not a change to the requirement that an 
enhancement finding be made prior to import into the United States, as 
this finding was also required under the previous 4(d) rule.
    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. The Service made 
a similar determination regarding the need for import permits for 
sport-hunted trophies of Appendix-II argali (Ovis ammon). In the final 
rule announcing the listing of the argali under the ESA (57 FR 28014, 
June 23, 1992), the Service determined the need for threatened species 
permits for import of sport-hunted trophies, noting that the ``history 
of excessive exploitation of the argali'' and ``the uncertainty 
concerning its management'' rebut the presumption that an export permit 
issued by the exporting country is all that is necessary to provide for 
the conservation of the argali in those countries. The district court 
upheld the Service's determination, finding no provision of the ESA 
indicates that ``the Secretary's duty and authority to issue protective 
regulations is preempted, circumscribed, or modified by section 
9(c)(2).'' Safari Club Int'l v. Babbitt, 1993 U.S. Dist. LEXIS 21795 
(W.D. Tex. Aug. 12, 1993).
    As stated previously, authorizing import of all sport-hunted 
trophies through threatened species enhancement permits will allow us 
to more carefully evaluate trophy imports in accordance with legal 
standards and the conservation needs of the species. For example, as we 
noted in the preamble to the proposed rule, 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 African elephant trophies is warranted, and we 
are consciously supplanting the provisions of section 9(c)(2) of the 
ESA that would otherwise apply.
    (18) Comment: The proposed rule violates the ESA. The Service 
proposes to restrict the number of sport-hunted trophies to two per 
hunter per year. In addition, the proposed rule requires issuance of a 
threatened species permit for all African elephant sport-hunted 
trophies, whereas now such permits are required only for trophies from 
CITES Appendix-I populations. The positive impact of sport hunting on 
wildlife management and economic development in Africa has been well 
documented, and the proposed rule does not detail the negative 
consequences the proposed revisions could have on sport hunting in 
Africa, nor does it offer evidence of how these negative consequences 
may impact conservation of elephants throughout their range. Because of 
this failing, the public has not been provided an opportunity to 
comment meaningfully, and, if finalized in its current form, this rule 
would constitute an arbitrary and capricious abuse of discretion.
    Response: We disagree. While we have consistently acknowledged the 
positive impact sport hunting can have on wildlife management and 
economic development, we also articulated our concerns in the proposed 
rule with respect to the potential for commercial quantities of ivory 
to be imported as a result of sport hunting and provided opportunity 
for public comment. This rule does not limit the opportunity to hunt, 
only the number of trophies that an individual could import in a given 
year. Based on the small number (fewer than 10) of U.S. hunters who 
have imported more than two trophies per year over the last several 
years, we do not expect this to be a significant change for the vast 
majority of hunters. Range countries that allow sport hunting of 
African elephants establish annual quotas for export. Unless otherwise 
proscribed, a quota for 50 elephants could be filled by one hunter or 
50 hunters. We do not believe, based on the information we have, that 
there is a shortage of hunters or that placing limits on the number of 
trophies that U.S. hunters can import in a given year would impact the 
overall number of elephants hunted. We are placing a limit on the 
number of trophies that can be imported to increase control of the U.S. 
domestic ivory market and to ensure that we are not allowing the import 
of commercial quantities of ivory as sport-hunted trophies. (See also 
the response to (12), above.)
    Requiring issuance of a threatened species permit for import of all 
African elephant sport-hunted trophies (instead of only those from 
Appendix-I populations) will help us to more carefully evaluate trophy 
imports in accordance with legal standards and the conservation needs 
of the species and to ensure a conservation benefit. (See the response 
to (17), above.)
    Comments on interstate and foreign commerce in ivory: The de 
minimis exception. The final rule will prohibit sale and offer for sale 
of ivory in interstate and foreign commerce except for antiques and 
certain manufactured items that contain a small (de minimis) amount of 
ivory and meet specific criteria. We received many comments on this 
proposed de minimis exception, including on the seven criteria set 
forth in paragraph (e)(3) to qualify for the exception. In the preamble 
to the proposed rule, we included a specific request for comment on the 
criteria proposed in paragraph (e)(3), particularly the criteria set 
forth in subparagraphs (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) and (v) (the manufactured 
item is not made wholly or primarily of ivory), including the impact of 
not including these criteria and whether these criteria are clearly 
understandable.
    Some, including some conservation organizations, expressed their 
preference for a complete ban on domestic commerce, but recognized our 
rationale for this proposed exception and asserted that the 
requirements to qualify should not be weakened in any way. Many others 
appreciated a de minimis exception but suggested a variety of changes 
to meet their particular needs, e.g., bagpipers and organists believe 
the 200-gram weight limit should be increased to cover all types of 
bagpipes and keyboard instruments with multiple keyboards; others 
believe the weight limit should be different for different types of 
objects (furniture, musical instruments, etc.); some urged us to adopt 
a volume limit, instead of a weight limit; some suggested that the text 
in criterion (iii) be amended to include ivory parts that are 
``integral'' to a manufactured item, not just ``fixed components'' of 
the item. We also received a request to amend criterion (iii) to 
include handcrafted items in addition to manufactured items. Some 
commenters urged us to extend the de minimis exception to commercial 
import and export.
    (19) Comment: It is critical that, in the final rule, this 
provision remains truly

[[Page 36397]]

an exception only for items with minimal amounts of ivory. The criteria 
required for meeting the de minimis exception are well thought out and 
when taken as a whole will ensure that only a narrow category of ivory 
product that does not contribute to illegal trade will be permitted. 
Strongly discourage the removal or rollback of any of the seven 
criteria.
    Response: We agree with the commenters.
    (20) Comment: The broad de minimis exemption should be removed or 
significantly tightened (i.e., limited to musical instruments only).
    Response: While we appreciate the concern expressed, we decline to 
accept this suggestion. We have given considerable thought to the de 
minimis exception and the development of the criteria that must be met 
to qualify for the exception. It is our intent only to allow continued 
interstate and foreign commercial trade in products that contain a 
small amount of old ivory; items that we do not believe are 
contributing to elephant poaching or the illegal ivory trade. That 
group of products includes certain musical instruments but also 
includes, for example, household items such as baskets with ivory trim 
and teapots with ivory insulators, knives and guns with ivory grips, 
and some canes, walking sticks, and measuring tools with ivory trim or 
decoration, etc.
    Our law enforcement experience over the last 25 years 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. In the 
preamble to the proposed rule, we described the November 2013 ``ivory 
crush'' during which 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 that was destroyed did not include any items that would be 
covered by this exception. 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. We also described, in 
the preamble to the proposed rule, the case involving a Philadelphia-
based African art dealer, which included the seizure of approximately 
one ton of ivory. All of the seized ivory (which was subsequently 
destroyed in our 2015 ivory crush in Times Square) was in the form of 
whole ivory carvings and did not include any items that would qualify 
under the de minimis exception in the final rule. Thus, we believe the 
criteria necessary to meet the de minimis exception will ensure that 
only a narrow category of ivory product that does not contribute to 
illegal trade will be permitted.
    (21) Comment: Replace the word ``fixed'' with the phrase ``fixed or 
integral'' in criterion (iii) to cover items that have small ivory 
pieces that can be easily removed (like nuts or pegs on some wooden 
tools or musical instruments). ``Integral'' connotes an item that is 
``essential to the completeness'' of a larger structure (Merriam-
Webster online dictionary) and should satisfy the purpose of the 
criterion without artificially distinguishing between components based 
on how easily they can be detached.
    Response: We believe this is a reasonable and useful suggestion and 
have revised the final rule accordingly.
    (22) Comment: The de minimis exception provides an important avenue 
to allow sale and offer for sale of ivory objects in interstate or 
foreign commerce that would not contribute to illegal wildlife trade. 
However, the requirements as written may not exempt many objects 
considered works of art by U.S. art museums. The commenters suggest 
adding ``handcrafted'' to ``manufactured'' in the de minimis exception. 
Handcrafted would cover works that are unique and made primarily by 
hand that might not be considered ``manufactured.''
    Response: We would have considered ``handcrafted'' items to fall 
under ``manufactured'' items, but we understand the distinction made by 
the commenters and have added handcrafted items to the criteria in 
paragraphs (e)(3)(iii), (v), and (vii) for clarity.
    (23) Comment: Allow handcrafted objects created before February 26, 
1976, to meet the de minimis exception, even if the ivory is a major 
component, so long as the ivory is not the primary source of value 
(e.g., portrait miniatures).
    Response: We appreciate that there are some items that meet most, 
but not all, of the criteria in the de minimis exception, and that some 
of these items may not be among those contributing to the poaching of 
elephants and illegal ivory trade. However, it is the criteria as a 
whole that we believe will 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 illegal trade. 
We have crafted the de minimis exception to allow continued commercial 
trade in items that contain only a small amount of older ivory and that 
are not valued primarily because of the ivory they contain. We consider 
an item to be made wholly or primarily of ivory if the ivory component 
or components account for more than 50 percent of the volume of the 
item. Likewise, if more than 50 percent of the value of an item is 
attributed to the ivory component or components, we consider the ivory 
to be the primary source of the value of that item. Any person claiming 
the benefit of this exception has the burden of proving that the 
exception is applicable and showing that an item meets all of the 
criteria under the exception. Allowing interstate and foreign commerce 
of items for which ivory is a major component is contrary to the intent 
of the de minimis exception and would complicate implementation and 
enforcement of the exception. Therefore, we have not included this 
suggestion in the final rule. However, we note that many (possibly 
most) portrait miniatures, the example provided by the commenter, would 
likely qualify as ESA antiques and, therefore, would not need to meet 
the de minimis exception to be sold in interstate or foreign commerce.
    (24) Comment: Allow a corresponding exception for import by U.S. 
art museums of works of art satisfying the stringent de minimis 
criteria.
    Response: See Comments on treatment of museums, below.
    (25) Comment: The Service should further restrict the date of 
import requirement in paragraph (e)(3)(i) so that it is consistent with 
the date in paragraph (e)(3)(ii), i.e., February 26, 1976.
    Response: The first two criteria paragraph (e)(3) to qualify for 
the de minimis exception set limits on when the ivory was either 
imported into the United States (if it is located in the United States) 
or when it was removed from the wild (if it is located outside the 
United States). We have chosen a different date for ivory that has been 
imported into the United States than for ivory located outside the 
United States to be consistent with our CITES regulations and standard 
CITES practices regarding pre-Convention specimens. Criterion (i) 
provides that, for items located in the United States, the ivory must 
either have been imported prior to January 18, 1990 (the date the 
African elephant was listed in CITES Appendix I), or imported under a 
CITES pre-Convention certificate (certifying that the ivory was removed

[[Page 36398]]

from the wild prior to the date the African elephant was first listed 
under CITES, which is February 26, 1976). This requirement is 
consistent with our CITES regulations at 50 CFR 23.55, which provide 
that CITES Appendix-I specimens may be used only for noncommercial 
purposes after import into the United States unless it can be 
demonstrated that they were imported prior to the Appendix-I listing or 
they were imported under a CITES pre-Convention certificate, which is 
issued to certify that the CITES specimen was taken from the wild prior 
to the date that the species was listed under CITES.
    Criterion (ii) states that, for items located outside the United 
States, the ivory must have been removed from the wild prior to 
February 26, 1976. In this situation, our CITES use-after-import 
provisions in 50 CFR 23.55 would not apply (since the ivory has not 
been imported into the United States). Any African elephant specimen 
removed from the wild prior to February 26, 1976, is considered to be 
``pre-Convention'' as it was acquired before it was subject to the 
provisions of CITES. The concept of pre-Convention CITES specimens and 
the process for authorizing international trade of CITES pre-Convention 
specimens is familiar to and widely understood by the 182 Parties to 
CITES. Therefore, we consider that use of the pre-Convention date as a 
qualifying factor for items located outside the United States is 
appropriate.
    (26) Comment: Some commenters urged us to maintain the language in 
paragraph (e)(3) in criterion (v) that ensures that a qualifying item 
is not made wholly or primarily of ivory and the language in criterion 
(iii) stating that ivory is not the primary source of the value of the 
item. They also asserted that the other criteria are all reasonable 
elements that, if enforced, would be an improvement on the regulatory 
status quo. Some commenters urged us to strengthen and clarify the de 
minimis requirements, specifically criterion (v). They expressed their 
belief that ``wholly or primarily'' is subject to interpretation and 
could be construed to allow the sale of items made of up to 50 percent 
ivory. They urged us to consider a more stringent standard and noted 
that the State of New York requires antiques to be less than 20 percent 
ivory and California requires antiques to be less than 5 percent ivory 
and musical instruments to be less than 20 percent ivory to qualify for 
legal sale. These commenters encouraged the use of an equally well-
defined numeric standard and low threshold amount of ivory to meet the 
requirements of criterion (v) of the de minimis exception. Some 
commenters suggested that, for some items, particularly furniture, we 
should consider a volume limit, as it allows for large antiques that 
use a proportionally small amount of ivory to be legally traded. Other 
commenters expressed uncertainty over how the primary source of value 
would be determined.
    Response: We agree that it is important to maintain all seven of 
the criteria for meeting the de minimis exemption and that all of these 
criteria taken together ensure that only items containing truly small 
quantities of ivory will qualify for the exemption. We disagree with 
the assertion that using only a percentage of the total volume or 
weight of an item instead of a total allowable weight for the ivory 
contained in an item will necessarily result in a more stringent or 
more easily enforceable standard. Less than 20 percent, by weight or 
volume, of a very large or heavy piece could equal far more than 200 
grams of ivory. Because all of the criteria must be met to qualify for 
the de minimis exception, both criterion (v) and criterion (vi), the 
two criteria that address quantity, must be met. This means that a 
qualifying item may not be made wholly or primarily of ivory and the 
total weight of the ivory component or components in the item must be 
less than 200 grams. We consider an item to be made wholly or primarily 
of ivory if the ivory component or components account for more than 50 
percent of the volume of the item. Likewise, if more than 50 percent of 
the value of an item is attributed to the ivory component or 
components, we consider the ivory to be the primary source of the value 
of that item. We believe that these criteria taken together 
appropriately limit the amount of ivory an item may contain and still 
qualify for the de minimis exception. We will provide additional 
guidance on the implementation of these criteria via our Web site, 
including how we will estimate the weight of the ivory contained in a 
manufactured or handcrafted item, prior to the effective date of this 
rule. However, as stated above, any person claiming the benefit of this 
exception has the burden of proving that the exception is applicable 
and showing that an item meets all of the criteria under the exception. 
See Comments on documentation requirements (below).
    (27) Comment: The 200-gram limit on the amount of ivory contained 
in antique objects seems unnecessarily stringent, driven by the weight 
of the ivory veneers on piano keys rather than a close review of the 
wide spectrum of antique objects that contain ivory. It is unclear how 
the Service would attempt to enforce the 200-gram limit (if the ivory 
is an integral part of the antique object, how could it be weighed 
separately?). If a de minimis limit is adopted, some commenters 
proposed that it be done by category of object; while 200 grams may be 
appropriate for musical instruments, with respect to other antique 
objects, particularly furniture, the Service should consider a volume 
limit, such as the 20 percent rule adopted in New York.
    Response: To be clear, the proposed de minimis exemption does not 
apply to antiques. Items made of ivory or containing ivory that qualify 
as ESA antiques may be sold or offered for sale in interstate or 
foreign commerce regardless of the quantity of ivory they contain. The 
de minimis provision applies to activities in interstate and foreign 
commerce involving handcrafted or manufactured items containing small 
amounts of pre-Convention ivory or ivory that was imported into the 
United States prior to 1990 that does not qualify as antique under the 
ESA. The intent of the de minimis provision is only to allow the sale 
of certain older items, containing small amounts of ivory, which we do 
not believe are contributing to the poaching of elephants in Africa.
    The commenters are correct that we chose the 200-gram limit because 
we believed it was large enough to accommodate most pianos and other 
musical instruments, as well as many other household and utilitarian 
items (such as baskets with ivory trim, teapots with ivory insulators, 
knives and guns with ivory grips, some canes and walking sticks with 
ivory inlay or other decoration, and measuring tools with ivory trim or 
decoration), but also because it was small enough to ensure that we 
were not allowing commercialization of substantial volumes of ivory. 
Because we proposed the 200-gram limit with a particular suite of 
existing items in mind, including certain musical instruments, we 
already have a good understanding of the types of items that qualify 
for the de minimis exception. We will provide additional guidance on 
the implementation and enforcement of the 200-gram limit. See also 
Comments on documentation requirements (below).
    (28) Comment: For the de minimis exemption to function as intended, 
it is important that the 4(d) rule apply documentation requirements 
that are flexible enough to be realistic and achievable. The Service 
has already articulated such requirements in the ``use after import'' 
rule, and this same standard should be used for items

[[Page 36399]]

subject to the de minimis exemption; specificity can only lead to 
confusion.
    Response: See Comments on documentation requirements (below).
    (29) Comment: The New York State Department of Environmental 
Conservation (DEC) commends the U.S. Fish and Wildlife Service for its 
efforts to combat illegal wildlife trade and states that it has been 
proud to work alongside the Service to eliminate the illegal trade in 
wildlife. New York State has recently passed robust legislation banning 
the sale of elephant and mammoth ivory and rhinoceros horn, with 
limited exceptions for products such as antiques containing only a 
small amount of ivory. This legislation significantly curtailed the 
amount of elephant ivory that can be legally sold, traded, or 
distributed in New York State. The de minimis exemption in the 
Service's proposed rule is a significant flaw that would weaken New 
York State's ivory prohibitions on interstate sale. Current New York 
State law generally prohibits interstate sale of elephant ivory unless 
a person can demonstrate that the item is an antique greater than 100 
years old and the person secures a permit from DEC to sell the ivory. 
The ESA generally preempts a State law that applies to import or 
export, or interstate or foreign sale of endangered or threatened 
species, where the State law prohibits what is authorized pursuant to 
an ESA exemption, permit, or implementing regulation. If the de minimis 
exemption is adopted, the State of New York must permit interstate sale 
of manufactured items containing de minimis amounts of ivory even if 
they are not antiques. The Service should reconsider this exemption.
    Response: We agree that the revised 4(d) rule for the African 
elephant would likely require that the State of New York allow sale and 
offer for sale of ivory in interstate or foreign commerce along with 
delivery, receipt, carrying, transport, or shipment in interstate or 
foreign commerce without a threatened species permit for manufactured 
items containing de minimis amounts of ivory, provided they meet 
specific criteria. While the commenters have expressed their concern 
that this portion of their rule may be preempted, they have not 
attempted to show why allowing interstate commerce of de minimis 
amounts of ivory would not adequately curtail the sale of elephant 
ivory or why a more restrictive approach may be necessary and advisable 
for the species. It is always a goal of the Service to balance the 
burden of regulation with conservation. Based on our more than 25 years 
of law enforcement efforts and input from the public, this rule strives 
to strike that balance. We will, of course, continue to monitor the 
situation, and if the balance tips, may revisit the rule as necessary.
    Additional comments on interstate and foreign commerce in ivory. As 
noted above, the final rule will prohibit sale and offer for sale of 
ivory in interstate and foreign commerce except for antiques and 
certain manufactured items that contain a small (de minimis) amount of 
ivory and meet specific criteria. In addition to the comments on the de 
minimis exception, we received comments on other aspects of the 
provisions for interstate and foreign commerce.
    (30) Comment: Some commenters, including the New York Department of 
Environmental Conservation, assert that the Service should require a 
permit for the sale, offer for sale, purchase, trade, barter, or 
distribution of articles containing African elephant ivory and products 
and parts from other endangered and threatened species in interstate or 
foreign commerce.
    Response: This comment, as it relates to other endangered and 
threatened species in interstate or foreign commerce, is beyond the 
scope of this rulemaking. However, the Service's goal here, and in its 
approach to regulating wildlife trade more broadly, is to balance the 
burden of regulation with the impact on conservation. Where our 
experience indicates that this activity is not contributing to the 
poaching of elephants and the risk of illegal trade is low, we do not 
wish to impose unnecessary regulatory burden on the public or 
additional workload on the Service, particularly in an area where the 
workload is already substantial.
    (31) Comment: The U.S. Fish and Wildlife Service should create a 
registry and license all ivory dealers as recommended in CITES 
Resolution Conf. 10.10 (Rev. CoP16). Section 9(d) of the ESA creates a 
mandate for the Service to track the disposition of ivory products once 
they enter the United States.
    Response: We disagree that section 9(d) of the ESA creates a 
mandate for the Service to track the disposition of ivory products once 
they enter the United States. Section 9(d) of the ESA requires people 
engaged in business as importers or exporters of wildlife, including 
any amount of African elephant ivory, to first obtain permission from 
the Service. These importers and exporters are also required to keep 
records of their imports and exports and any subsequent disposition by 
them of the wildlife and to allow the Service to examine those records. 
Those provisions remain firmly in place. The Service requires that 
anyone engaged in commercial import or export of wildlife obtain an 
Import/Export License from our Office of Law Enforcement and provide an 
opportunity for us to examine inventories and required records ``at all 
reasonable times upon notice by a duly authorized representative.'' We 
believe that the prohibitions and exceptions laid out in this rule are 
adequate to effectively regulate ivory trade in the United States and 
to ensure that the U.S. market for ivory is not contributing to 
elephant poaching and illegal ivory trade. A registry and licensing 
scheme would be unduly burdensome on both the regulated public and the 
Service, with little, if any, added conservation benefit beyond the 
restrictions already in place and those added here.
    (32) Comment: Some commenters stated that the economic impact of 
the proposed rule on American craftsmen and artisans will be 
significant. One commenter estimated that there are about seven 
individuals in the United States who purchase tusks (from individuals 
who imported them prior to 1989) and cut them into a variety of forms, 
or ``blanks,'' for U.S. craftsmen to finish. These craftsmen work the 
ivory pieces into finished products, including pool cues, knife 
handles, and piano keys. He estimated that there are about 15 
individuals making pool cues with ivory ferrules and that there are a 
total of about 300 people in the United States creating finished 
products using ivory. The commenter stated that under the proposed rule 
all of these people would lose their livelihoods. We also received 
comments from craftsmen who restore ivory pieces (see (48), below).
    Response: We agree that this rule will impact craftsmen working 
with ivory in the United States. We note, however, that the final rule 
does not impact intrastate (within a State) commerce so those buying 
and selling within the State in which they reside will be able to 
continue to do so (where such activity is allowed under State law). In 
addition, we note that these craftsmen can make use of alternative 
materials, including mammoth ivory or deer antlers, for example. Martin 
and Stiles noted in their 2008 report that the exact number of ivory 
craftsmen in the United States is unknown but they estimated that there 
were 120 to 200 craftsmen at that time, with the number decreasing over 
time. The authors also noted that most craftsmen work part-time with 
ivory and use other materials as well. The impact on individual 
craftsmen will depend on the diversity of materials they use (wood, 
bone, mammoth tusks,

[[Page 36400]]

etc.) and may range from minimal revenue decrease to closure.
    (33) Comment: The U.S. Fish and Wildlife Service definition of 
``commercial activity'' is substantially narrower than the statutory 
definition and is, therefore, unlawful and should be amended. Section 3 
of the ESA broadly defines ``commercial activity'' to mean ``all 
activities of industry or trade, including, but not limited to, the 
buying or selling of commodities.'' The Service's regulations at 50 CFR 
17.3 further define ``industry or trade'' to mean only ``the actual or 
intended transfer of wildlife from one person to another person in the 
pursuit of gain or profit.'' The Service's definition essentially 
restricts covered ``commercial activities'' to the buying and selling 
of items. This definition contravenes the statutory definition, which 
covers both buying and selling items, as well as other commercial 
activities. The Service should rethink and broaden its regulatory 
definition [of commercial activity] and its application in the 4(d) 
rule.
    Response: The regulatory definition of ``industry or trade'' with 
regard to commercial activity has been in place for many years and was 
promulgated through rulemaking conducted in accordance with the 
Administrative Procedure Act (APA), where the public received 
opportunity for notice and comment. As we know the commenter is aware, 
this definition has broader application than this 4(d) rule. We do not 
consider it appropriate to amend the definition for this specific 
rulemaking. In addition, as explained in the preamble to the proposed 
rule, we believe that taking an article across State lines for repair, 
for example, rightfully falls outside what is considered ``commercial 
activity.'' We may revisit this issue in the future if the existing 
definition appears to allow activities that may be contrary to the 
spirit or plain language of the ESA.
    Comments on documentation requirements. We received a number of 
comments requesting that we provide clearly understandable guidance on 
how to determine whether an item qualifies for the antiques or de 
minimis exemptions and what type of documentation can be used to 
demonstrate that an item qualifies for one of these exemptions. Many 
musicians asked that we clarify the documentation needed to show the 
provenance of ivory contained in instruments. Some commenters asked for 
a rigorous and clearly defined method for documenting the age and 
provenance of an item so that both buyers and sellers understand their 
duties under the law. Others asked that we clarify how to determine the 
weight of ivory in a manufactured or handcrafted piece (where it cannot 
be removed and weighed) or how to determine whether the ivory is the 
primary source of value of an item. Some commenters noted that, for the 
de minimis exemption to function as intended, it is important that the 
Service apply documentation requirements that are flexible enough to be 
realistic and achievable. They pointed to the requirements articulated 
in the ``use after import'' provisions of our CITES regulations at 50 
CFR 23.55 as a good example and argued that the same standard should be 
used for items subject to the de minimis exemption. We appreciate this 
input and understand the concerns. We are developing clear guidance for 
the public that we will make available before the effective date of 
this final rule.
    One commenter asked whether the Service intends to require 
scientific testing of all ivory. Another commenter stated that many 
types of forensic testing are expensive, often destructive to the 
object, and sometimes unavailable due to an object's small size. They 
noted, however, that an object whose ivory cannot be identified 
forensically may be identified through expert analysis of trade 
patterns for objects of that type, the maker of the object, and 
geomapping of the object. They urged us to make clear that both of 
these types of evidence (forensic and other expert analysis) are 
acceptable. Another commenter asked us to clarify that, with respect to 
manufactured items, contemporary evidence contained in catalogs, price 
lists, and similar materials showing that a particular item was not 
offered for sale after a given date would constitute evidence that the 
item was manufactured prior to that date. Some commenters provided 
information on nondestructive methods for determining age and species 
of ivory objects, including both scientific methods and methodologies 
employed by art historians.
    Response: We agree that forensic testing is not necessarily 
required. Provenance may be determined through a detailed history of 
the item, including but not limited to, family photos, ethnographic 
fieldwork, art history publications, or other information that 
authenticates the article and assigns the work to a known period of 
time or, where possible, to a known artist or craftsman. A qualified 
appraisal or another method, including using information in catalogs, 
price lists, and other similar materials that document the age by 
establishing the origin of the item, can also be used.
    With regard to the criteria for meeting the de minimis exception, 
we consider an item to be made wholly or primarily of ivory if the 
ivory component or components account for more than 50 percent of the 
volume of the item. Likewise, if more than 50 percent of the value of 
an item is attributed to the ivory component or components, we consider 
the ivory to be the primary source of the value of that item. Value can 
be ascertained by comparing a similar item that does not contain ivory 
to one that does (for example, comparing the price of a basket with 
ivory trim/decoration to the price of a similar basket without ivory 
components). Though not required, a qualified appraisal or another 
method of documenting the value of the item and the relative value of 
the ivory component, including, as noted above, information in 
catalogs, price lists, and other similar materials, can also be used.
    We will not require ivory components to be removed from an item to 
be weighed. Because we proposed the 200-gram limit with a particular 
suite of existing items in mind, including certain musical instruments, 
knife and gun grips, and certain household and decorative items, we 
already have a good understanding of the types of items that qualify 
for the de minimis exception. 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 or integral 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).
    We realize that determining whether an object containing ivory 
complies with these requirements may sometimes be difficult for persons 
who are not ordinarily engaged in commercial trade of such articles. 
Our law enforcement focus under this rule will be to help eliminate 
elephant poaching by targeting persons engaged in or facilitating 
illegal ivory trade. While it is the responsibility of each citizen to 
understand and comply with the law, and that is our expectation with 
regard to this regulation, we do not foresee

[[Page 36401]]

taking enforcement action against a person who has exercised due care 
and reasonably determined, in good faith, that an article complies with 
the de minimis requirements.
    We will provide additional guidance on the implementation of these 
criteria via our Web site, including how we will estimate the weight of 
the ivory contained in a manufactured or handcrafted item and how we 
will determine that an item is made ``wholly or primarily'' of ivory, 
prior to the effective date of this rule.
    We have already provided guidance, in the appendix to Director's 
Order 210, regarding documentation to demonstrate that an item meets 
the definition of ``antique'' under the ESA. We will provide additional 
guidance to the regulated public regarding documentation and other 
evidence that may be used to demonstrate that an item meets the 
specific exceptions to the prohibitions in this rule. We will make that 
information available on our Web site in advance of the effective date 
of this rule.
    (34) Comment: Some commenters noted that the Internal Revenue 
Service has established an Art Advisory Panel that determines age and 
value for all sorts of art and antiques. They suggested that the 
Service may want to set up a similar panel of experts who can make 
declarations that objects are in compliance with the ESA antiques 
exemption.
    Response: We do not believe that a third party panel or body is 
necessary for the effective implementation of this rule, although we 
encourage the regulated public to utilize available experts to provide 
technical advice regarding the qualifications of an item that may 
qualify for an exception to this rule. We will provide additional 
guidance to the regulated public regarding documentation and other 
evidence that may be used to demonstrate that an item meets the 
specific exceptions to the prohibitions in this rule. We will make that 
information available on our Web site in advance of the effective date 
of this rule.
    (35) Comment: The Service must provide a safe harbor, whereby an 
affidavit from a qualified art, antiques, or ivory expert that the item 
satisfies the ESA antiques exemption is deemed sufficient. The Service 
could itself certify experts or require that such experts be certified 
by a third party.
    Response: We disagree. Anyone claiming the benefit of an exemption 
from ESA prohibitions has the burden of proving that the exemption is 
applicable. There are a variety of methods and forms of documentation 
that can be used to demonstrate that the exemption applies. The Service 
has a long history of implementing and enforcing the ESA, including the 
antiques exemption. We do not believe that a safe harbor, as described 
by the commenters, is appropriate for the effective implementation of 
this rule. We do, however, encourage the public to utilize available 
experts to provide technical advice regarding the qualifications of an 
item that may qualify for an exception to this rule. See the other 
responses under Comments on documentation requirements, including to 
(34) above.
    (36) Comment: The American Society of Appraisers asked whether and 
to what extent the Service plans to pursue legal or administrative 
recourse against appraisers who perform ``best efforts'' appraisals 
only to discover after some time that key assumptions or determinations 
that underpinned the appraisal are determined to be inaccurate.
    Response: In Appendix 1 to Director's Order 210, we have provided 
explicit information on what the Service will accept as a qualified 
appraisal and facts we examine in determining the reliability of the 
appraisal. An appraisal using appropriate professional expertise based 
on the best available information at that time that is later determined 
to be incorrect would not subject that appraiser to legal action under 
this rule. We expect an appraiser or other individual to be able to act 
in good faith in his or her professional capacity.
    Comments on the U.S. role in the illegal ivory market. We received 
a number of comments on the U.S. role in the illegal ivory market and 
steps the Service should take to address ivory trafficking.
    (37) Many commenters asserted that ivory trafficking is primarily a 
problem in Asia and Africa, not here in the United States, and that the 
best way to protect African elephants is to step up enforcement and 
conservation efforts in Africa and in China. Some commenters cited 
analyses of CITES Elephant Trade Information System (ETIS) data as 
evidence that the United States is not part of the problem.
    Response: Based on all available information, we believe that ivory 
trafficking is a global problem, and that the United States has a duty 
and responsibility to work with other countries around the world to 
combat illegal trade in ivory and other wildlife parts and products. To 
that end, we are actively engaged in combating poaching in African 
elephant range states and wildlife trafficking in transit and consumer 
states. We are supporting anti-poaching efforts in parks and other 
protected areas, providing training to rangers, working collaboratively 
on international investigations, supporting demand-reduction campaigns 
in consumer countries, and pushing other countries to strengthen their 
ivory trade controls. We disagree with the assertion that the United 
States does not play a role in the market for illegal ivory and that we 
do not have a duty and responsibility to take steps to control our own 
domestic ivory market. Trafficking of ivory is a complex, global 
problem, and it will take coordinated, focused efforts by all countries 
involved as source, transit, or destination countries to bring it to an 
end. 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. We 
made this point in the proposed rule, and it is apparent in the ETIS 
reports cited by some commenters. We gave an overview in the proposed 
rule of the seizures by Service wildlife inspectors of unlawfully 
imported and exported elephant specimens over the years, and we 
described multiple smuggling operations, investigated by Service 
special agents, involving the trafficking of elephant ivory for U.S. 
markets. We reported that, 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 more than 1,500 items 
that contained or consisted of elephant parts or products. Nearly 1,000 
of those items contained or consisted of elephant ivory. In his 2013 
articles ``It's Not Just China, New York is Gateway for Illegal Ivory'' 
and ``The Big Ivory Apple,'' Daniel Stiles described a 2013 visit to 
New York City during which he saw what appeared to be a ``massive 
decline'' in the ivory market, compared to his visit a little more than 
5 years earlier, with a 60 percent decrease in the number of outlets 
selling ivory and an approximately 50 percent decrease in the number of 
ivory items for sale. However, the author still found cause for concern 
and concluded that ``New York and San Francisco appear to be gateway 
cities for illegal ivory import in the U.S. . . China is not the only 
culprit promoting elephant poaching through its illegal ivory markets. 
The U.S. is right up there with them.'' In a very

[[Page 36402]]

recent (March 9, 2016) case, the senior auction administrator of a 
gallery and auction house in Beverly Hills, California, pled guilty in 
Federal court to conspiring to smuggle wildlife products made from 
rhinoceros horn, elephant ivory, and coral with a market value of 
approximately $1 million. He personally falsified customs forms by 
stating that rhinoceros horn and elephant ivory items were made of 
bone, wood, or plastic. We are revising the 4(d) rule for the African 
elephant to more strictly regulate trade in African elephant ivory and 
help to ensure that the U.S. ivory market is not contributing to the 
poaching of elephants in Africa.
    (38) Comment: The relative importance of the United States as a 
destination for illegal ivory has been greatly exaggerated. This 
misconception is attributed to the misreading of a table in Martin and 
Stiles 2008 report, Ivory Markets in the USA, which identifies the 
United States as having the second largest retail market for ivory in 
the world.
    Response: The United States has among the largest economies in the 
world and has a large market for wildlife products, including ivory. 
Some commenters provided information estimating the size of the legal 
market for ivory in the United States. Although, by their nature, 
illegal markets are difficult to quantify, we agree that it is not 
accurate to characterize the United States as having the second-largest 
illegal ivory market in the world, and to be clear, we have not done 
so. We are aware, as the commenter notes, that others have made this 
assertion. (See also the response to (56), below.)
    (39) Comment: In describing the U.S. market in the preamble to the 
proposed rule, the Service cited surveys done by Daniel Stiles and 
stated that ``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.'' In his comments on the 
proposed rule, Mr. Stiles objected to that characterization and noted 
that the report in question said nothing about ``imported illegally''; 
it only stated that there is a much higher incidence of what appears to 
be ivory of recent manufacture in California, roughly doubling from 
about 25 percent in 2006 to about half in 2014, and that no conclusions 
should be drawn about what percentage of ivory in the United States is 
legal or illegal based on visual examination.
    Response: It was certainly not our intention to mischaracterize Mr. 
Stiles' work. In an effort to avoid any mischaracterization, we will 
instead present excerpts from his surveys describing the U.S. role in 
the illegal ivory trade. The report referred to here is titled 
``Elephant Ivory Trafficking in California, USA'' (Stiles, 2015), and 
the stated purpose (on p. 1) of the study was to ``ascertain the 
current ivory trade in California and estimate what proportion might be 
illegal.'' The author describes his methodology for determining the 
date of manufacture and/or import of an item and notes that it is 
fraught with difficulty and that it is subjective, based on the 
investigator's experience, knowledge of worked ivory from different 
regions, and clues gathered in conversations with informants or 
descriptions and photographs on tear sheets on Web sites. He states 
that the results should be considered a ``rough estimate.''
    A summary of his results, in the abstract section, includes the 
following: ``In Los Angeles, between 77% and 90% of the ivory seen was 
likely illegal under California law (i.e., post-1977), and between 47% 
and 60% could have been illegal under federal law. There is 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. Most of the 
ivory products surveyed appear to have originated in East Asia.'' He 
also states, on p. 15, that ``Based on the style of the possibly 
illegal worked ivory, the investigator concluded that it originated, in 
order of proportion, from East Asia, Africa, and Europe . . . most of 
it was probably smuggled in sea or air shipments mixed in with mammoth 
ivory, carved bone and resin pieces; shipped concealed and mislabeled 
with other products (e.g., crafts, furniture); or carried in personal 
luggage. The fact that the majority of illegal ivory in the United 
States is coming from China makes sense, as a great deal of raw ivory 
is transported from Africa to China where it is carved mainly in 
factories in the Guangdong and Fujian provinces and then smuggled to 
the United States.''
    We recognize Mr. Stiles' experience and expertise in investigating 
ivory markets around the world, and we recognize the difficulties 
associated with estimating the age or date of manufacture or import 
based on visual inspection. We do, in fact, recognize his conclusions 
to be rough estimates. That said, his studies provide additional 
evidence of the role of the United States in the illegal ivory trade.
    (40) Comment: The Service must do more than focus on large-scale 
smuggling of ivory and must address the rampant interstate trade in 
ivory, which has a substantial negative cumulative impact on elephant 
conservation.
    Response: We agree that more holistic regulation of ivory trade is 
necessary to address the U.S. role in this trade. The previous 4(d) 
rule did not regulate sale or offer for sale in interstate commerce of 
African elephant ivory, unless it was illegally imported into the 
United States or unless it was a sport-hunted trophy imported in 
violation of a permit condition. This rule goes further 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 limited exceptions. The final rule will improve controls on 
the domestic market, which will make it more difficult to launder 
illegal elephant ivory through the U.S. marketplace. Our target in this 
action is illegal ivory trade that is contributing to pushing African 
elephants toward extinction. Our goal is to thwart those engaged in 
trafficking of African elephant ivory. We will focus our enforcement 
efforts on people engaged in illegal activities that contribute to the 
poaching of elephants in Africa. We will not focus our enforcement 
efforts on people who legally possess and want to sell African elephant 
ivory under the exceptions provided and who, in the exercise of due 
care, have reasonably determined in good faith that an article complies 
with one of the available exceptions.
    We believe that the restrictions and exceptions in this rule are 
necessary and advisable for the conservation of the African elephant 
while not unnecessarily regulating or prohibiting certain activities 
that do not contribute to elephant poaching and illegal ivory trade.
    (41) Comment: The domestic ivory trade is not supplied by tusks 
taken from elephants dying in Africa today; it runs entirely on ivory 
that was legally imported before 1989. There is no demand for new raw 
ivory in the United States. There is a ``glut of estate raw tusks in 
the U.S.'' that sell for about 10-15 percent of the cost of those that 
can be obtained in China. No informed trafficker would try to smuggle 
tusks into the United States.
    Response: We disagree. We cited numerous examples in the proposed 
rule of ongoing illegal trade in ivory to the United States. Additional 
examples have been documented since publication of the proposed rule. 
Our

[[Page 36403]]

wildlife inspectors consistently interdict and seize illegal elephant 
ivory. As recently as February 17, 2016, a New York antique dealer 
pleaded guilty to trafficking in prohibited wildlife that included raw 
and carved elephant ivory. He pleaded guilty to a felony Lacey Act 
charge for the unlawful import of a pair of elephant tusks and 
subsequent sale of those and four other elephant tusks to a 
Massachusetts collector. He purchased the ivory in Canada and smuggled 
it into the United States. The total value of the seized items is in 
the thousands of dollars. Thus, recent law enforcement efforts 
demonstrate that the United States plays a role in the illegal trade 
and associated illegal killing of African elephants.
    (42) Comment: U.S. demand can be adequately addressed by pre-2014 
law, as the successful prosecutions demonstrate.
    Response: Although we have successfully investigated and prosecuted 
some cases in the last several years, our law enforcement personnel 
have indicated that the current regulatory regime makes it extremely 
difficult to effectively control illegal ivory trade in the United 
States. See response to (39) above regarding the apparent availability 
of illegal ivory in U.S. markets.
    (43) Comment: The U.S. Fish and Wildlife Service should not be 
fighting this battle with mostly law-abiding American citizens when 
Chinese speculators are buying tons of poached ivory every year. Those 
who wish to prohibit legal ivory trade are creating the conditions for 
speculators to cash in; they are cutting off supply and creating 
artificial scarcity. Strongly urge the Service to devote its energies 
to solving the real problem--speculator demand for raw ivory in eastern 
Asia.
    Response: We agree that solving this problem requires a suite of 
actions both domestically and internationally. This is a global 
challenge requiring global solutions. The United States is working with 
foreign governments, international organizations, nongovernmental 
organizations, and the private sector to maximize impacts together. 
These efforts aim to strengthen enforcement, reduce demand, and 
increase cooperation to address these challenges. See the response to 
(59) on other activities and initiatives in which we are engaged to 
help stop the poaching of elephants and end the illegal trade in ivory.
    Comments on trade in antique ivory. In the final rule, we define 
antique (in paragraph (e)(1)) to mean any item that meets all four 
criteria under section 10(h) of the ESA, and we clarify (in paragraph 
(e)(9)) that antiques meeting this definition are not subject to the 
provisions of this rule. In that same paragraph, we point to the AfECA 
and remind readers that the provisions and prohibitions under AfECA 
also apply to trade in African elephant ivory, regardless of the age of 
the item.
    (44) Comment: One commenter suggested adding the word 
``nevertheless'' into the antiques paragraph, (e)(9), at the beginning 
of the sentence on the African Elephant Conservation Act to clarify 
that, while the ESA antiques exception does allow import of antiques, 
the AfECA does not.
    Response: We believe this is a useful suggestion and have amended 
paragraph (e)(9) of the final rule accordingly. Additional text has 
been added to make clear that nothing in this rule interprets or 
changes any provisions or prohibitions that may apply under AfECA.
    (45) Comment: Close the antiques loophole. By allowing sale of 
antiques made largely or entirely of ivory you will leave open one of 
the major loopholes used by smugglers today.
    Response: The ESA antiques exception is statutory language enacted 
by Congress. We do not have the authority to eliminate this exception.
    (46) Comment: Some recent ivory carvings are artificially aged to 
make them appear to be antiques. This practice underscores the need for 
a greater burden of proof for genuine antiques.
    Response: We believe that the prohibitions and exceptions in this 
final rule are appropriate and necessary for the conservation of the 
African elephant. With regard to elephant ivory, we agree that there 
have been attempts to disguise the age of elephant ivory. However, we 
have not, to date, had a comprehensive regulatory regime in place for 
African elephant ivory. We believe that the prohibitions on interstate 
commerce, the specific criteria to meet the exception for ESA antiques, 
including clarification that the person claiming the benefit of the 
antiques exception has the burden of demonstrating that it applies, 
along with specific guidance such as that contained in Director's Order 
210, are adequate to ensure that the antique exception is not exploited 
to engage in illegal trade in non-antique ivory items.
    (47) Comment: The Service is taking the approach that it cannot 
distinguish legitimate antiques from new ivory. The legislative history 
of the ESA demonstrates that Congress agreed that legitimate antiques 
were distinguishable from newly harvested items.
    Response: We fully agree that antiques can be distinguished from 
non-antiques, and our experience in implementing the ESA has 
demonstrated that fact. See Comments on documentation requirements, 
above. What we are making clear in this final rule is that the burden 
of demonstrating that an item qualifies for the ESA antiques exemption 
is firmly on the person claiming the benefit of that exemption.
    (48) Comment: One ivory restorer commented that, under this rule, 
ivory that has been repaired after 1973 cannot be considered an antique 
and, therefore, cannot be sold. He noted that he has rarely seen any 
quality antique ivory that has not already been repaired and that he 
considers this provision to be an intentional roadblock to commerce. He 
added that much of his repair work requires no new ivory, just 
rebuilding and removal of old glue and dirt.
    Response: To qualify as an antique, an item must meet all four 
criteria under section 10(h) of the ESA, including that it has not been 
repaired or modified with any part of an ESA-listed species on or after 
the date of enactment of the ESA (December 28, 1973). This provision is 
contained in the statute and applies to all ESA-listed species; it is 
not unique to this final rule or to African elephant ivory. We note, 
however, that removing old glue and dirt, as described by the 
commenter, would not be considered a repair or modification under the 
ESA unless it involved the use of additional ivory or other material 
from other ESA-listed species.
    (49) Comment: Some commenters provided estimates of the value of 
antique ivory in personal household collections in the United States 
and the number of Americans who own antique ivory. One study, based on 
information from public sources, including auction sales reports, and 
interviews with ``over 30 important dealers, auction houses, individual 
collectors and antique experts'' evaluated the value of ``high-end, 
antique ivory objects'' in private collections. The author stated that 
8.1 percent of U.S. households (9.5 million households) have a net 
worth of $1 million or more, excluding their home, and that if 5 
percent of these households own ivory, there are 475,000 households 
``likely to possess antique ivory objects.'' The author assigned an 
average value of $25,000 to the ivory in each of these households and 
arrived at an estimated value of $11.9 billion for the antique ivory in 
private collections in the United States.
    Another paper on the scope of the antique ivory market in the 
United

[[Page 36404]]

States stated that ``5-10% of all antique decorative arts objects are 
made of or contain ivory or other endangered species materials.'' The 
author provided ``a very rough estimate'' of 400 million or more 
objects in the United States that contain or are made entirely of 
ivory. (While he stated that the majority of these objects were made 
``prior to World War II'' it is not clear how many of these items may 
be antiques.) He also estimated that the total number of high-value 
items worth more than $10,000 each is relatively small (probably 
hundreds of thousands) whereas the number of more common decorative 
items is huge (400 million). The author also estimated that between 1.5 
million and 2.5 million items made from ivory enter into commerce 
annually. Some commenters provided the results of a survey. The author 
of the survey asserted that ``(i)f 13 million people own 2.4 objects 
that have an average real value in today's market of $240 each, then we 
can say that it is probable that incidental ivory possessions--
excluding pianos and major ivory collections--have an aggregate value 
of $7.488 billion.'' Not all of these items would qualify as antiques, 
however, as the average age of these objects was estimated to be 76 
years (see also the response to (57), below).
    One commenter asserted that ``the vast majority of ivory antiques 
transactions are relatively small in value (less than $500)'' and 
argued that requiring ``onerous and prohibitively expensive 
documentation'' would effectively prevent people from taking part in 
such transactions. These commenters, and others, asserted that the 
proposed rule would impose extremely onerous and unnecessary 
requirements on owners of ivory to demonstrate that an object satisfies 
the antiques exemption, which would largely destroy the exemption and 
render the vast majority of legitimate ivory antiques in the United 
States worthless.
    Response: We disagree. This rule does not impose any requirements 
to demonstrate the antiques exemption that do not already exist for 
other ESA-listed species. We regularly issue permits for ESA antiques, 
and there remains an active trade in antiques that contain ESA-listed 
species in the United States. The ESA states explicitly (in section 
10(g)) that an individual seeking the benefit of an exception bears the 
burden of demonstrating that an item meets that exception. We note that 
a number of commenters provided information on nondestructive methods 
for determining age and species of ivory objects, including both 
scientific methods and methodologies employed by art historians. They 
stated that the arts and antiques market is grounded in the ability to 
determine the authenticity of items, and experts in the field are 
capable of distinguishing legitimate antiques from forgeries. As noted 
above, we encourage the regulated public to utilize available experts 
to provide technical advice regarding the qualifications of an item 
that may qualify for an exception to this rule. Appendix 1 to 
Director's Order 210 provides guidance on the antique exception under 
the ESA, including guidance on documentation that may be used to 
demonstrate that an item meets the exception. We will develop and 
communicate additional guidance on documentation and other information 
that may be used to demonstrate how to meet the exception for ESA 
antiques. See Comments on documentation requirements, above.
    While some commenters estimated the value and age of ivory in 
private household collections, this rule has no impact on private 
household collections unless and until they are sold. We agree that the 
majority of ivory antiques are small in value as stated by some 
commenters (less than $500 per item or $240 per item).
    For the purposes of estimating the impacts of the rule, we assume 
that ivory (antique and non-antique) will continue to enter the legal 
market at the same rate as prior to this rule. Therefore, we disagree 
that between 1.5 million and 2.5 million ivory items enter commerce 
annually, as estimated by one commenter. Based on our review of data 
sources, the number of ivory items that are sold annually in the United 
States is closer to 89,000 items (see economic analysis for more 
information).
    In our economic analysis, we estimate that sales in the domestic 
market average $88.8 million to $1.2 billion annually. For a 
conservative estimate of the domestic market analysis, we employ a 
lower bound of $992 per item (consistent with the online auction market 
average value) and an upper bound of $18,000 per item (which was the 
highest lot sold price in live auctions).
    Based on the assumption that the proportion of the value of antique 
ivory items in domestic commerce resembles the export market (two 
percent), we estimate the rule to impact from $1.8 million to $23.4 
million in interstate commerce of non-antiques. Therefore, this rule 
will not have an impact of billions of dollars, as some commenters have 
asserted.
    Comments on treatment of museums. After 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 
received input from representatives of the U.S. museum community. They 
expressed their concern that prohibitions on interstate commerce will 
impact their ability to acquire items for museum collections. In the 
preamble to the proposed rule, we recognized that museums can play a 
unique role in society by curating objects that are of historical and 
cultural significance and sought input from the public regarding 
whether we should incorporate an exception to the prohibitions on 
interstate commerce for museums, either through this rulemaking process 
or through a separate rulemaking process under the ESA. Additionally, 
we sought comment on how best to define museums in this regard, given 
the diverse interests that they serve.
    We received a number of suggestions for the definition of 
``museum,'' including the definition developed by the Institute of 
Museum and Library Services (found at 2 CFR 3187.3), the Institute of 
Museum and Library Services definition with some added provisions, and 
the definition used by the International Council of Museums, with an 
additional requirement that a museum must have been established for at 
least 10 years prior to its first attempt at interstate procurement of 
ivory. Some commenters urged us to defer this issue to a separate 
rulemaking and comment period; others believe such an exception should 
be included in this final rule.
    (50) Comments: One commenter asked how museums, if there is an 
exception made for them, would be able to engage in interstate commerce 
when the proposed rule contains no such exception for other market 
participants. The commenter urged the Service to consider expanding the 
museum exception to include other reputable members of the arts and 
antiquities community to facilitate this commerce and ensure that 
pieces of cultural and historical significance are preserved for future 
generations.
    Some commenters supported an exception for museums and urged us to 
consider such an exception to be expanded to include any entity that 
holds a Federal income tax exception under section 501(c)(3) of the 
Internal Revenue Code, as amended, which would allow museums to acquire 
culturally significant items, churches to purchase used pipe organs 
from other churches, and orchestras to obtain instruments for their 
musicians.
    Some commenters urged us to allow an exception not only for 
interstate

[[Page 36405]]

commerce but also for import by U.S. art museums of works of art 
satisfying the de minimis criteria.
    Other commenters expressed concern about a possible exemption for 
museums and noted that the range of entities considered to be 
``museums'' is quite broad and includes a wide range of interests and 
purposes. Other commenters were strongly opposed to an exception to the 
prohibition on interstate commerce for museums. They stated their 
belief that it is unnecessary, given the antiques exception contained 
in the ESA and the de minimis exception included in the proposed rule. 
Some asserted that entities purporting to be museums could abuse a 
museum exception to perpetuate the trade in elephant ivory in a manner 
that undermines elephant conservation.
    Response: We believe that this is an important issue that warrants 
further consideration. We received a range of ideas and opinions on how 
to define a ``museum'' and whether or not entities so defined should be 
treated differently than other groups under the ESA. This is a complex 
issue that warrants careful consideration as any such decision will 
have ramifications beyond trade in African elephant ivory and the scope 
of this rulemaking. Therefore, we will explore the treatment of museums 
under the ESA in a separate rulemaking process and seek comment from a 
broader constituency regarding the potential benefits and risks of an 
exemption from certain ESA prohibitions for museums. Until such time, 
our regulations do not contain an exception to the prohibitions on 
interstate and foreign commerce for museums.
    Comments regarding import or export of ivory as part of a traveling 
exhibition. Some commenters sought clarification regarding the 
exception for items containing ivory that are part of a traveling 
exhibition. Requirements for import or export of worked ivory as part 
of a traveling exhibition are found in 50 CFR 17.40(e)(5)(ii).
    (51) Comment: One commenter pointed to the requirement that items 
that are part of a traveling exhibition must be marked or uniquely 
identified and noted that marking of objects is not always practical. 
The commenter stated that some museums and other lenders are unlikely 
to permit their objects to be marked and requested that we clarify that 
photographs may be used, as an alternative to marking, to uniquely 
identify an item imported or exported as part of a traveling 
exhibition.
    Response: As the commenter noted, the requirement is that an item 
be marked or uniquely identified (emphasis added). We agree that a 
photograph may be used to identify an item, in place of a mark, as long 
as the photograph allows a border official to verify that the 
certificate and the item correspond.
    (52) Comment: Some museum directors stated that, although the CITES 
traveling exhibition certificate can, theoretically, work for an 
exhibition organized by a foreign museum, not all countries issue 
traveling exhibition certificates. While noting that the Service has 
been helpful in trying to obtain traveling exhibition certificates from 
these countries, the commenters identified the need for a more 
permanent solution. In addition, some museum directors stated that the 
traveling exhibition certificate is problematic for long-term loans, as 
the maximum duration of a traveling exhibition certificate is 3 years, 
which is often not sufficient. They acknowledged that this is not the 
sole purview of the Service, but asked that we consider ways to extend 
the maximum duration, remove the time limit, or allow certificates to 
be extended without the necessity of bringing the object back to the 
issuing country. It was suggested that, as an alternative, a pre-
Convention certificate could be used, conditioned to state that the 
item is on loan from or to a U.S. museum, that it will be used for 
exhibition only and will not be sold or otherwise transferred while 
traveling internationally, and will be returned to the country that 
issued the certificate.
    Response: It is true that not all countries issue CITES traveling 
exhibition certificates. As the commenters noted, we work with these 
countries, as the need arises, to encourage them to issue such a 
certificate or to find a suitable alternative. Alternatives may include 
the use of a CITES pre-Convention certificate with conditions 
specifying that international trade of the item must be under similar 
conditions as those for trade under a traveling exhibition certificate. 
We continue to work with other CITES Parties to promote the use of 
traveling exhibition certificates and to streamline exchanges between 
museums to the extent possible.
    Comments on regulatory process. Some commenters expressed concern 
about the process the Service has undertaken to revise the 4(d) rule.
    (53) Comment: Some commenters asserted that the proposed rule 
violates the APA notice-and-comment provisions because the Service 
failed to provide evidence supporting its rationale for the revisions 
and failed to estimate negative consequences to the domestic ivory 
market; therefore, the public is not afforded a meaningful opportunity 
to comment. They further assert that we have failed to establish a 
linkage between the U.S. market and illegal ivory trade or poaching of 
African elephants in the wild and have admitted that it is not possible 
to predict how many elephants will be saved by revising the 4(d) rule. 
Without being provided such evidence, they do not believe the public 
has the opportunity to meaningfully comment. If finalized in its 
current form, they believe this would also be a violation of the APA's 
arbitrary and capricious standards.
    Response: We disagree. An agency need not justify the rules it 
selects in every detail, but it is required to explain the general 
bases for the rules chosen. See Connecticut Light and Power v. NRC, 673 
F. 2d 525 (D.C. Cir. 1982). We have thoroughly explained the bases for 
the actions we proposed to take. In the preamble to the proposed rule, 
we described the unprecedented increase in the illegal killing of 
elephants, the alarming growth in illegal trade of elephant ivory, and 
U.S. involvement in the illegal ivory trade. (See Comments on the U.S. 
role in the illegal ivory market, above.)
    It seems these commenters would require the Service to predict 
exactly how many African elephants would be conserved before they 
believe they can meaningfully comment pursuant to the APA. A 
quantitative estimate of benefits is not necessary to satisfy the 
purposes of the ESA. The Service finds that provisions in this 4(d) 
rule are necessary and advisable to provide for the conservation of the 
African elephant and has also included appropriate prohibitions from 
section 9(a)(1) of the ESA. Thus, the final rule meets the standards 
under section 4(d). Moreover, E.O. 12866 recognizes that some costs and 
benefits are difficult to quantify and instructs agencies to adopt 
regulations based on a reasoned determination that the benefits of the 
intended regulation justify the costs. We have made a reasoned 
determination based on a qualitative assessment of the rule's benefits.
    (54) Comment: Some commenters asserted that Director's Order 210 
(DO 210) establishes binding agency rules for enforcement of the AfECA 
and the ESA and is thus a legislative rule, which requires notice and 
comment under the APA.
    Response: Although we have reflected certain provisions of DO 210 
in the 4(d) rule, this final rule does not interpret or implement DO 
210 or the AfECA, and we note that this rulemaking is being promulgated 
in accordance with the APA.

[[Page 36406]]

    DO 210 is a policy statement and not subject to the notice-and-
comment procedures of the APA. Notice-and-comment procedures are 
required only under the APA (5 U.S.C. 553) for legislative rules with 
the force and effect of law; ``interpretive rules, general statements 
of policy, or rules of agency organization procedure, or practice'' are 
exempted. 5 U.S.C. 553(b)(A) ; see also Nat'l Ass'n of Broadcasters v. 
FCC, 569 F.3d 416, 425-26, 386 U.S. App. DC 259 (D.C. Cir. 2009). The 
Attorney General's Manual on the Administrative Procedure Act (1947) 
offers ``the following working definitions'':
    Substantive rules--rules, other than organizational or procedural 
rules under section 3(a)(1) and (2), issued by an agency pursuant to 
statutory authority and which implement the statute, as, for example, 
the proxy rules issued by the Securities and Exchange Commission 
pursuant to section 14 of the Securities Exchange Act of 1934 (15 
U.S.C. 78n). Such rules have the force and effect of law.
    Interpretative rules--rules or statements issued by an agency to 
advise the public of the agency's construction of the statutes and 
rules which it administers.
    General statements of policy--statements issued by an agency to 
advise the public prospectively of the manner in which the agency 
proposes to exercise a discretionary power.
    DO 210 ``establishes policy and procedure for [Service] employees 
to implement the National Strategy as it relates to the trade in 
elephant ivory . . .'' and, thus, falls squarely within the ``General 
statements of policy'' as defined in the Attorney General's Manual on 
the Administrative Procedure Act. DO 210 is a general statement of 
policy, informing employees and the public as to how the Service will 
enforce the moratorium. Language in the DO 210 emphasizing employees' 
discretionary power with regard to implementation supports this 
position.
    Further, under the Supreme Court's holding in Heckler v. Chaney, DO 
210 is a statement of the Service's decision not to enforce the 
moratorium to the fullest extent possible. See Daniel T. Shedd & Todd 
Garvey, A Primer on the Reviewability of Agency Delay and Enforcement 
Discretion, CRS REPORT, 4 (Sept. 4, 2014) (quoting Heckler, 470 U.S. at 
832) (arguing that this statement is applicable to the Director's 
Order). In Heckler, an agency's ``decision not to prosecute or enforce 
. . . is a decision generally committed to an agency's absolute 
discretion.'' DO 210 is not a final agency action subject to judicial 
review.
    (55) Comment: The proposed rule would prohibit interstate and 
foreign sale of currently legal ivory products, unless the item falls 
under the antiques exemption or the de minimis exception. Meeting these 
standards will prove burdensome and difficult. If the proposal is 
finalized in its present form, it would violate the dictates of justice 
and fairness and would result in an unconstitutional taking of legally 
imported ivory under the 5th Amendment.
    Response: Under E.O. 12630, ``significant [Constitutional] takings 
implications should . . . be identified and discussed'' in notices of 
proposed rulemakings. The Service has concluded that the proposed rule 
does not have significant takings implications.
    This 4(d) rule applies to all African elephants and their parts, 
including live and dead elephants, parts other than ivory, and products 
made from elephant parts other than ivory. Compared to the restrictions 
provided by statute and regulation for other ESA threatened species, 
this rule places relatively few restrictions on live elephants and 
parts and products other than ivory.
    While the rule does restrict certain activities with elephant 
ivory, people who lawfully possesses African elephant ivory can 
continue to engage in many activities with their ivory. They can 
continue to possess their ivory. They can gift it or bequeath it to 
another person. They can sell it and engage in other commercial 
activities with the ivory within their State provided the commercial 
activity is allowed under other law. They can also import or export 
ivory, sell or offer for sale ivory in interstate or foreign commerce, 
and engage in other commercial activities in interstate or foreign 
commerce provided they meet the requirements of the rule, in most cases 
without first obtaining an ESA threatened species permit. The many 
unregulated activities that may continue under the rule with elephants 
and their parts and products, including ivory, as well as activities 
that would be allowed, provided that regulatory requirements are met, 
indicate that the rule proposes no significant takings implications.
    Overall, this rule is comparable to provisions applicable to other 
commercially valuable threatened species. For nearly all other 
endangered and threatened species, practically all import, export, sale 
or offer for sale in interstate or foreign commerce, and certain 
activities in interstate or foreign commerce in the course of a 
commercial activity are prohibited, unless the activity qualifies as a 
particular purpose and the person obtains an ESA permit. These 
standard, more stringent prohibitions under the ESA have never been 
successfully challenged as a Constitutional taking.
    For example, in Andrus v. Allard, 444 U.S. 51 (1979), an analogous 
scenario challenging the prohibition of commercial transaction in parts 
of birds legally killed before they came under the protection of the 
Eagle Protection Act and the Migratory Bird Treaty Act, the Supreme 
Court held the simple prohibition of the sale of lawfully acquired 
property does not effect a taking in violation of the Fifth Amendment. 
It noted the challenged regulations do not compel the surrender of the 
artifacts in question, and there is no physical invasion or restraint 
upon them. It found the denial of one traditional property right does 
not always amount to a taking, nor is the fact that the regulations 
prevent the most profitable use of appellees' property dispositive, 
since a reduction in the value of property is not necessarily equated 
with a taking.
    (56) Comment: Mischaracterization by the Service of the Stiles data 
not only violates the APA but also the Data Quality Act (DQA). One 
commenter stated that ``Although the FWS characterized the U.S. as the 
world's second largest market for illegal ivory, it bases this claim 
largely on a report that Stiles compiled with Esmond Martin in 2008 . . 
. [which] is likely due to the misreading of a table in his report. . . 
.'' The commenter goes on to assert that, because this ``evidence'' is 
utilized by the Service in the proposed rule, the public has not been 
provided a true picture of the U.S. ivory market or its relation to the 
illegal ivory trade.
    Response: Nowhere in the proposed rule did we claim that the United 
States is the second largest market for illegal ivory (or for legal 
ivory) in the world. We quoted (on p. 45159) a 2004 report by Douglas 
Williamson of TRAFFIC who stated 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.'' In his comments on 
the proposed rule, Mr. Stiles states that he ``would like to dispel the 
false claim that the U.S. is the second largest market for illegal 
ivory consumption in the world--repeated in NGO campaigns and media 
stories constantly.'' He attributes this misconception to an incorrect 
interpretation of a table in the 2008 Martin and Stiles report. The 
executive summary of that 2008 report states that ``The USA appeared to 
have the second largest ivory retail market in

[[Page 36407]]

the world after China/Hong Kong, as determined by numbers of items seen 
for sale.'' Although we did not refer to Mr. Stiles' characterization 
of the size of the U.S. market (which he repeated in his 2015 report), 
others who commented on the proposed rule did. The commenter has 
incorrectly conflated the comments of others on this subject with the 
text of the proposed rule. See our response to Mr. Stiles' comments 
under (39), above.
    (57) Comment: The Regulatory Flexibility Act (RFA) requires an 
agency either to certify that a proposed rule will not have a 
significant economic impact on a substantial number of small entities 
or to conduct a full analysis that describes the effect of the rule on 
small entities. The Service has certified that the proposed rule will 
not have a significant impact on a substantial number of small 
entities, but there is nothing in the record that supports this 
certification. The Service estimates a two percent decrease in domestic 
sales by assuming that the domestic market operates in much the same 
way as the export market. There is no evidence to support this 
assumption. The Service also states that they are proposing to take 
this action to increase protection for African elephants and that 
increased control of the domestic ivory market would benefit the 
conservation of the African elephant. Both of these claims cannot be 
true. If the proposed rule reduces domestic and export markets by two 
percent, the revision cannot possibly have a measureable impact on the 
illegal trade of African elephant ivory. Either the Service is grossly 
underestimating the impact of the proposed rule or is grossly 
overestimating the impact of the U.S. ivory market on illegal trade.
    Response: We disagree. The provisions in the final rule, including 
the clarification that anyone claiming the benefit of an exemption 
under the ESA has the burden of proving that the exemption applies, 
allow us to more strictly regulate the U.S. ivory market, which will 
benefit the conservation of the African elephant by prohibiting those 
activities that we believe are contributing to the poaching of 
elephants and for which we believe the risk of illegal trade may be 
high. We believe the major impact will be to ongoing illegal trade, of 
which there remains ample evidence in the United States. As we noted in 
the proposed rule, there are limited data available on the domestic 
ivory market.
    Some commenters provided estimates of the value of antique ivory in 
personal collections (nearly $12 billion according to one document) and 
the number of Americans who own antique ivory (hundreds of thousands of 
households). (See Comments on trade in antique ivory, above). Some 
commenters provided a study, based on an email survey sent to 167 
individuals, which estimated the number of Americans who possess 
objects containing ivory. The author of the study states that the 
results of the survey indicate that there are 13 million Americans who 
own an average of 2.4 objects that they believe to be made from or with 
ivory. Most were considered family heirlooms. The average age of those 
objects was estimated to be 76 years, and the average value was 
estimated to be $240 each. These estimates were extrapolated to arrive 
at an aggregate value of over $7 billion for ``incidental ivory 
possessions'' (excluding pianos). We understand that there are many 
Americans who own ivory, including African elephant ivory. These rough 
estimates of the quantity, age, and value of ivory in the United States 
help to provide a general picture of private household collections in 
the United States, but this rule has no impact on private household 
collections unless and until they are sold. Furthermore, because most 
of the objects are considered family heirlooms, we expect that these 
items would most likely be passed from one generation to another. We 
assume for the purposes of our analysis that ivory (both antique and 
non-antique) will continue to enter the legal market at the same rate 
as prior to this rule. In our economic analysis, we estimate that 
domestic ivory sales average $88.8 million to $1.2 billion annually, 
with non-antique sales representing about $1.8 million to $23.4 million 
annually.
    Some commenters provided information on the economic impact of the 
proposed rule on American craftsmen and artisans (See (32) above). We 
have used this information in the Regulatory Flexibility Analysis to 
describe the types of establishments that will be impacted by this 
rule. We used the data available to us, including the export data from 
our Office of Law Enforcement, to make reasonable assumptions to 
approximate the potential economic impact of the proposed rule, 
including impacts on interstate commerce. We evaluated the declared 
value of worked ivory exports during a recent 5-year period, which 
varied 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 will no longer allow the commercial export of non-antique ivory, 
we expect, based on the information available, that, on average, 
commercial export of worked ivory will decrease by about two percent.
    With regard to the domestic market, while the final rule will 
result in prohibitions on certain activities in interstate and foreign 
commerce, it will have no impact on commercial activities within a 
State (intrastate commerce). Businesses will not be prohibited by the 
final rule from selling raw or worked ivory within the State in which 
they are located, unless prohibited under State law.
    Under the final rule, certain commercial activities, such as sale 
in interstate or foreign commerce of raw ivory and non-antique worked 
ivory, with the exception of those items that qualify for the de 
minimis exception, will no longer be permitted. In our economic 
analysis, we estimate that domestic ivory sales range from $88.8 
million to $1.2 billion annually. Using the best data available, the 
percentage of non-antiques in the export market (two percent) is 
extrapolated to the domestic market, as an upper-bound estimate of 
impacts, based on the assumption that the domestic market would be 
similar to the export market. Thus, the decrease in sales of non-
antique ivory in the domestic market ranges from $1.8 million to $23.4 
million annually. If those items that do not qualify as antiques 
constitute a greater proportion of commercial activities, the impacts 
could be greater. However, because we are allowing commercial 
activities in interstate and foreign commerce with certain items 
containing de minimis amounts of ivory, and many of these items would 
be precluded from export, we believe that an even smaller percentage of 
the legal domestic market would be impacted compared to the export 
market.
    Contrary to the commenter's claim that it cannot be true that we 
are taking this action to increase protection for African elephants, 
but that these actions will not have a significant impact on current 
legal trade, we believe that these actions will substantially impact 
our ability to effectively control trade and that will contribute to a 
reduction in illegal killing of elephants. As we described in the 
proposed rule, there is ample evidence that the United States continues 
to be a market for illegal trade and that a substantial amount of ivory 
currently available in the United States was illegally imported. These 
increased controls will lead to conservation benefits for African 
elephants by making

[[Page 36408]]

it more difficult for unscrupulous actors to launder illegal ivory 
through the legal market.
    (58) Comment: One commenter asserted that certification of this 
rule under the RFA was inappropriate and that the Service should 
conduct an Initial Regulatory Flexibility Analysis. They stated that 
the Service proposes to prohibit all commercial sale of ivory in 
interstate or foreign commerce with the exception of those items that 
could meet the de minimis exemption and that ``there are 24,730 
businesses that are either art dealers or used merchandise dealers that 
could be affected by the rule. These commercial vendors comprise 70% of 
the potentially affected businesses and over 84% of these businesses 
are small entities.'' They went on to conclude that ``over 84% of small 
businesses in the affected industries will be impacted.''
    Response: The commenter's concerns are based on an incorrect 
assessment of what the rule would do and an unrealistic estimate of the 
number of small businesses that would be impacted. Under the provisions 
of the final rule, in addition to the exception for manufactured items 
that contain a small (de minimis) amount of ivory, interstate and 
foreign commerce in antiques will also still be allowed (see paragraphs 
(e)(3) and (e)(9) in the final rule). Table 2 in the preamble to the 
proposed rule (expanded and reprinted below, as Table 3, in this 
document) provides the number of businesses within affected industries 
and the percentage of those businesses that are considered small 
businesses, based on the North American Industry Classification System 
(NAICS). The table includes 7 industries and a total of 35,350 
businesses within those industries. Eighty-four percent of those 
businesses are considered small businesses. However, it is very 
misleading to suggest that most of these businesses, small or 
otherwise, would be impacted by this rule.
    The commenter has pointed to the 24,730 businesses classified under 
the NAICS as either used merchandise stores or art dealers. This total 
number includes 19,793 used merchandise stores (NAICS code 453310), 74 
percent of which are considered small businesses, and 4,937 art dealers 
(NAICS code 453920), 95 percent of which are considered small 
businesses. The NAICS defines these categories as follows:
    453310 Used Merchandise Stores: This industry comprises 
establishments primarily engaged in retailing used merchandise, 
antiques, and secondhand goods (except motor vehicles, such as 
automobiles, RVs, motorcycles, and boats; motor vehicle parts; tires; 
and mobile homes). Examples include: Antique shops; Used household-type 
appliance stores; Used book stores; Used merchandise thrift shops; Used 
clothing stores; and Used sporting goods stores. This category 
obviously contains a wide range of businesses selling a wide range of 
products.
    453920 Art Dealers: This industry comprises establishments 
primarily engaged in retailing original and limited edition art works. 
Included in this industry are establishments primarily engaged in 
displaying works of art for retail sale in art galleries. This category 
also includes art auctions.
    Extrapolating data from market surveys conducted by Martin and 
Stiles in 2006 and Stiles in 2014, we estimate that this rule would 
impact 3,200 retail outlets selling ivory products nationwide (see 
economic analysis) and represent 12 percent of all used merchandise 
stores and art dealers. Under this rule, these retail outlets would 
incur costs of one percent or less of total sales (see Regulatory 
Flexibility Act section for more detail). The other five categories of 
businesses in Table 2 in the preamble to the proposed rule are: Musical 
instrument manufacturing; sporting and recreational goods and supplies 
merchant wholesalers; metal kitchen cookware, utensil, cutlery, and 
flatware (except precious) manufacturing; jewelry and silverware 
manufacturing; and all other miscellaneous wood product manufacturing. 
Another commenter estimated that there are about 300 people in the 
United States creating finished products using ivory components. Of 
these, the commenter estimated that about 15 individuals make 10 pool 
cues per year with ivory ferrules. This would translate to less than 
one percent of the industry ``All other miscellaneous wood product 
manufacturing'' (NAICS 321999). While the commenter did not provide 
data regarding the industries under which the remainder of the 300 
establishments would be categorized, we can estimate that the potential 
number of establishments represents two percent of establishments in 
the affected industries (excluding Used Merchandise Stores) or three 
percent of establishments in the affected industries (excluding Used 
Merchandise Stores and Sporting and Recreational Goods Stores). The 
2008 Martin and Stiles report estimated that there were 120 to 200 
ivory craftsmen in the United States, which would represent one to two 
percent of establishments in the affected industries.
    We recognize that we are unable to conclusively quantify the number 
of small businesses within the individual industries that would be 
affected by the rule. The final rule prohibits 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, except for qualifying 
antiques and manufactured items that contain a small (de minimis) 
amount of ivory and meet certain criteria. Our evaluation of the 
current market, particularly our estimate of the proportion of the 
trade that will continue to be allowed as antiques, indicates only 
about a two percent decrease in commercial exports of African elephant 
ivory ($2.1 million annually) and a similar two percent decrease in 
interstate commerce ($1.8 million to $23.4 million).
    (59) Comment: The Service has ignored obvious alternatives to a 
domestic ivory ban that would be much more effective at saving 
elephants without depriving Americans of property rights. Among the 
alternatives to a ban on ivory trade that the Service failed to 
evaluate or consider: Increasing support for conservation and local 
community programs in Africa; increasing support for local African law 
enforcement; enforcing Pelly sanctions against China and other Asian 
and African countries for illegal ivory trade; bolstering embassy 
support in African range countries and destination countries for 
poached ivory to increase diplomatic pressure on governments; and 
rewarding African countries with effective conservation programs by 
allowing an international trade of ivory from those countries.
    Response: The Service is actively engaged in the types of 
activities described by the commenter. We are supporting anti-poaching 
efforts in parks and other protected areas, providing training to 
rangers, working collaboratively on international investigations, 
supporting demand-reduction campaigns in consumer countries, and 
pushing other countries to strengthen their ivory trade controls. This 
final rule is in addition to other actions taken by the Service and 
other U.S. Government agencies to combat illegal trade in elephant 
ivory and other protected wildlife.
    As noted in the proposed rule, on July 1, 2013, President Obama 
signed Executive Order 13648 on Combating Wildlife Trafficking. The 
Executive Order calls on executive departments and agencies to take all 
appropriate actions within their authority to ``enhance domestic 
efforts to combat

[[Page 36409]]

wildlife trafficking, to assist foreign nations in building capacity to 
combat wildlife trafficking, and to assist in combating transnational 
organized crime.'' On February 11, 2014, President Obama issued the 
National Strategy for Combating Wildlife Trafficking, which identifies 
three strategic priorities for a whole-of-government approach to 
tackling wildlife trafficking: Strengthening enforcement; reducing 
demand for illegally traded wildlife; and expanding international 
cooperation and commitment. On February 11, 2015, the U.S. Departments 
of the Interior, Justice, and State, as co-chairs of the President's 
Task Force on Wildlife Trafficking, released the implementation plan 
for the National Strategy. Building upon the Strategy's three strategic 
priorities, the plan lays out next steps, identifies lead and 
participating agencies for each objective, and defines how progress 
will be measured. The implementation plan reaffirms our Nation's 
commitment to work in partnership with governments, local communities, 
nongovernmental organizations, and the private sector to stem the 
illegal trade in wildlife.
    Multiple U.S. Government agencies are involved in the fight against 
wildlife trafficking and are engaged in activities under all three of 
the strategic priorities identified in the National Strategy. U.S. 
Government grants and initiatives in support of efforts to combat 
poaching of elephants and trafficking of elephant ivory include 
projects that provide for: Training, operating expenses, and equipment 
for anti-poaching patrols; purchase and maintenance of vehicles and 
other equipment for rangers; expenses for aerial surveillance; and 
training of dogs for detection and investigation of wildlife crime and 
protection of rangers and wildlife. U.S. Government law enforcement 
professionals provide training and expertise to foreign partners in 
Africa through the International Law Enforcement Academy (ILEA) in 
Botswana (created through a bilateral agreement between the governments 
of Botswana and the United States to provide training for 
representatives from countries in sub-Saharan Africa). The U.S. 
Government also promotes and supports the development and operation of 
regional Wildlife Enforcement Networks and provides training to develop 
capacities to investigate, prosecute, and adjudicate wildlife crimes. 
The U.S. Fish and Wildlife Service Office of Law Enforcement has placed 
special agents in U.S. embassies in key regions (including in China, 
Botswana, Tanzania, and Thailand) to build wildlife law enforcement 
capacity, coordinate investigations, and facilitate information sharing 
and training. The Service and other U.S. Government agencies also 
support research, monitoring and assessment of elephant populations, 
landscape and community conservation efforts, and projects to mitigate 
human-elephant conflict and to reduce demand for elephant ivory. All of 
these U.S. Government initiatives contribute to the conservation of the 
African elephant.
    Eliminating poaching of elephants and trafficking of ivory can be 
achieved only through a concerted, multifaceted international effort. 
In issuing the National Strategy for Combating Wildlife Trafficking, 
President Obama recognized that ``this is a global challenge requiring 
global solutions'' and stated that we will work with foreign 
governments, international organizations, nongovernmental 
organizations, and the private sector to maximize our impacts in 
addressing this challenge. In addition, the National Strategy asserts 
that ``the United States must curtail its own role in the illegal trade 
in wildlife and must lead in addressing this issue on the global 
stage.'' The United States is committed to doing its part to fight 
wildlife trafficking and to ensure the conservation of African 
elephants in the wild. This final rule is one component of this 
multifaceted effort.

Changes From the Proposed Rule to the Final Rule

    All changes from the proposed rule of July 29, 2015 (80 FR 45154), 
to this final rule were discussed above in the responses to comments 
received. In summary, the provisions of this final rule are largely 
unchanged from those of the proposed rule, with the exception of words 
that have been added in response to requests in the comments:
     We added a sentence in paragraph (e) to remind readers 
that the provisions under AfECA also apply.
     We added the words ``or handcrafted'' following the word 
``manufactured'' in paragraphs (e)(3), (5), (6), (7), and (8) to cover 
works that are unique and made primarily by hand that might not be 
considered ``manufactured.'' We added the words ``or integral'' to the 
criterion in paragraph (e)(3) that describes the ivory being a fixed 
component of a larger manufactured or handcrafted item to cover items 
that have small ivory pieces that can be easily removed (like nuts or 
pegs on some wooden tools or instruments).
     We added text to the criteria in paragraphs (e)(3)(iii) 
and (v) to clarify that when we say ``primary'' or ``primarily'' we 
mean more than 50 percent.
     We added text to paragraph (e)(5)(ii)(B) to clarify that, 
for items that are part of a traveling exhibition, either a CITES 
traveling exhibition certificate or an equivalent CITES document may be 
used.
     We rephrased our reference to the African Elephant 
Conservation Act in paragraph (e)(9) where we clarify that, while the 
ESA antiques exception allows import of antiques, the moratorium under 
the AfECA does not.
    The effects of this final rule on trade are set forth below in 
Table 1. This table is only for guidance on the revisions to the 
existing ESA 4(d) rule for the African elephant; see the rule text for 
details. All imports and exports must be accompanied by appropriate 
CITES documents and meet other FWS import/export requirements.

Table 1--How Will Changes to the African Elephant 4(d) Rule Affect Trade
                       in African Elephant Ivory?
------------------------------------------------------------------------
                               What activities are
                               currently allowed/
                                prohibited under      What will change
                              statute, regulation,   when the final rule
                               or law enforcement     goes into effect?
                                   discretion?
------------------------------------------------------------------------
                              In 2014, the Service  This column
                               revised Director's    describes the
                               Order No. 210         contents of the
                               (effective May 15,    final rule in
                               2014) and U.S.        general terms.
                               CITES implementing    Please refer to the
                               regulations [50 CFR   final rule text for
                               part 23] (effective   details. These
                               June 26, 2014).       provisions will go
                              These actions          into effect 30 days
                               created new rules     after the final
                               and guidance for      rule is published
                               trade in elephant     in the Federal
                               ivory..               Register.

[[Page 36410]]

 
Import......................  Commercial            Commercial
                              What's allowed:.....  The final rule does
                               No            not include any
                               commercial imports    changes for
                               allowed..             commercial imports.
                                                    ....................
                              Noncommercial         Noncommercial
                              What's allowed:       The final rule
                               Sport-        includes the
                               hunted trophies (no   following changes
                               limit)..              for noncommercial
                               Requires      imports:
                               issuance of a         Limits
                               threatened species    import of sport-
                               permit under 50 CFR   hunted trophies to
                               17.32 for import of   two per hunter per
                               African elephant      year.
                               sport-hunted          Requires
                               trophies from         issuance of a
                               Appendix-I            threatened species
                               populations..         permit under 50 CFR
                               Law           17.32 for import of
                               enforcement and       all African
                               bona fide             elephant sport-
                               scientific            hunted trophies.
                               specimens..           Removes the
                               Worked        requirement that
                               elephant ivory that   worked elephant
                               was legally           ivory has not been
                               acquired and          sold since February
                               removed from the      25, 2014. All other
                               wild prior to         requirements for
                               February 26, 1976,    worked elephant
                               and has not been      ivory (listed in
                               sold since February   the previous
                               25, 2014, and is      column) must be
                               either:.              met.
                              [cir] Part of a
                               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 final rule
                               CITES pre-    further restricts
                               Convention worked     commercial exports
                               ivory, including      to only those items
                               antiques..            that meet the
                              What's prohibited:..   criteria of the ESA
                               Raw ivory..   antiques
                                                     exemption.*
                                                    Raw ivory remains
                                                     prohibited
                                                     regardless of age.
                              Noncommercial         Noncommercial
                              What's allowed:       The final rule
                               Worked        further restricts
                               ivory..               noncommercial
                              What's prohibited:..   exports to the
                               Raw ivory..   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 final 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 or
                                                        handcrafted
                                                        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 final rule
 (interstate commerce).        Ivory         includes the
                               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 [seller   manufactured or
                               must demonstrate]..   handcrafted items
                                                     that contain a
                                                     small (de minimis)
                                                     amount of ivory. **
                                                     Prohibits
                                                     interstate commerce
                                                     in:
                                                    [cir] ivory imported
                                                     under the
                                                     exceptions for a
                                                     household move or
                                                     inheritance, or for
                                                     law enforcement or
                                                     genuine scientific
                                                     purposes, and
                                                    [cir] sport-hunted
                                                     trophies.

[[Page 36411]]

 
Sales within a State          What's allowed:       The final rule does
 (intrastate commerce).        Ivory         not include any
                               lawfully imported     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 final rule does
 within the United States.     including             not include any
                               interstate and        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 final rule does
                               noncommercial use     not include any
                               of legally acquired   changes for
                               ivory is allowed.     personal
                                                     possession.
------------------------------------------------------------------------
* To qualify for the ESA antiques 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 or handcrafted
  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 or integral component or components of a
  larger manufactured or handcrafted item and is not in its current form
  the primary source of the value of the item, that is, the ivory does
  not account for more than 50% of the value of the item;
(iv) The ivory is not raw;
(v) The manufactured or handcrafted item is not made wholly or primarily
  of ivory, that
is, the ivory component or components do not account for more than 50%
  of the item by
volume;
(vi) The total weight of the ivory component or components is less than
  200 grams; and
(vii) The item was manufactured or handcrafted before the effective date
  of this rule.

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 rule follows. The Service has prepared an economic 
analysis, as part of our review under the National Environmental Policy 
Act (NEPA), which we made available for review and comment (see the 
paragraph in this Required Determinations section on the National 
Environmental Policy Act). This final rule revises the 4(d) rule, which 
regulates trade of African elephants (Loxodonta africana), including 
African elephant parts and products. We are revising the 4(d) rule to 
more strictly control U.S. trade in African elephant ivory. Revision of 
the 4(d) rule means 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 will 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].'' The final rule contains 
specific exceptions for certain activities with specimens containing de 
minimis quantities of ivory; ivory contained in musical instruments, 
traveling exhibitions, inherited items, and items that are part of a 
household move that meet specific conditions; ivory imported or 
exported for scientific or law enforcement purposes; certain live 
elephants; and ivory items that qualify as ``pre-Act'' or as antiques 
under the ESA. Some of these exceptions remain prohibited under the 
AfECA import moratorium. However, under Director's Order 210, as 
amended on May 15, 2014, as a matter of law enforcement discretion, the 
Service will not enforce the AfECA moratorium with respect to these 
limited exceptions meeting specific criteria.
    This rule regulates 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 
marine 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 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

[[Page 36412]]

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 instruments.
    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. In our proposed rule, we solicited 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 had the least amount of information, 
to help quantify these costs and benefits.
    Imports. A moratorium on the import of African elephant ivory other 
than sport-hunted trophies was established under the AfECA and has been 
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 Service employees must strictly implement and 
enforce the AfECA moratorium on the importation of raw and worked 
African elephant ivory, regardless of age, while, as a matter of law 
enforcement discretion, allowing noncommercial import of certain items, 
including law enforcement and scientific items, musical instruments, 
items as part of a household move or inheritance, and exhibition items, 
where it can be demonstrated that the ivory was removed from the wild 
prior to 1976. We are reflecting 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 
will continue to be allowed under the revisions, provided the 
requirements at 50 CFR parts 13, 14, and 23 are met. Import of African 
elephant sport-hunted trophies will be limited to two trophies per 
hunter per year. This may impact about seven hunters, representing 
about three percent to four percent of hunters importing African 
elephant trophies, 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 will have no 
impact on exports of raw ivory. Revision of the 4(d) rule means that 
export of worked African elephant ivory will 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 
will 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 will 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 will decrease by about $2.1 million 
annually (two percent, by value, of worked ivory exports).
    Domestic and Foreign Commerce. The final rule prohibits 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 
handcrafted or manufactured items containing de minimis amounts of 
ivory) without an ESA permit issued under 50 CFR 17.32. As noted above, 
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].'' 
Otherwise, commercial activities in interstate and foreign commerce 
with live African elephants and African elephant parts and products 
other than ivory will continue to be allowed under the revisions to the 
4(d) rule. While revisions to the 4(d) rule will 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, 
the rule will not have an impact on intrastate commerce. Businesses 
will not be prohibited by the 4(d) rule from buying and 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, comprehensive data for the African elephant ivory 
market do not exist. Thus we estimate the value of the domestic market 
(including retail establishments, online auctions, and live auctions) 
using the best available data, which include reports that describe 
subsets of the domestic market along with public comments.
    To extrapolate retail outlet data nationwide, assumptions are made 
using the best available data. Although the States of New York, New 
Jersey, California, and Washington have enacted stringent legislation 
prohibiting most ivory sales and Hawaii has new legislation ready to be 
signed by the governor, we have not excluded establishments in these 
states in order to estimate the largest potential impact. In 2006, 
Martin and Stiles surveyed 16 major cities across the United States to 
identify retail establishments trading in worked ivory (including ivory 
from African elephants). Using this information, along with more recent 
data, we have estimated that in 2016 there are 423 establishments in 
those 16 cities averaging 22 ivory items per outlet (see economic 
analysis). These establishments represent 11 percent of used 
merchandise stores and art dealers (423 ivory outlets of 3,996 
establishments within the 16 cities). Applying this ratio (11 percent) 
to all used merchandise and art dealer establishments nationwide yields 
approximately 2,700 establishments selling 60,000 ivory items.
    For online auctions, the International Fund for Animal Welfare 
(IFAW) reported that there are two major online

[[Page 36413]]

auction aggregators (LiveAuctioneers.com and AuctionZip.com) but 
reported sales data for only LiveAuctioneers.com. By extrapolating data 
from a 9-week period, the authors estimated that LiveAuctioneers.com 
sell about 13,200 ivory lots that average $992 per lot and are worth 
$13.0 million annually. To extrapolate online auction data nationwide, 
we considered the annual revenue of LiveAuctioneers.com ($2.5 million 
to $5 million) and AuctionZip.com ($500,000 to $1 million) (Manta 
2016). Since AuctionZip.com is about 80 percent smaller than 
LiveAuctioneers.com, we assume that AuctionZip.com may have about 80 
percent less of the ivory sales as well ($2.6 million). To determine 
the national annual online ivory sales and account for ivory sales on 
AuctionZip.com and any other smaller online auctions, the estimate is 
doubled to $26.1 million, of which non-antiques represent $574,000.
    For live auctions, IFAW investigated 14 auctions and found 833 
ivory lots were sold over a 3-month period. Extrapolating to an annual 
estimate would result in 14 auction houses selling 3,332 ivory lots 
annually and averaging 238 ivory lots per auction house. The highest 
sold lot price ranged from $1,220 to $18,000. IFAW only investigated 
auctions that were identified as selling ivory during the scoping 
process and did not tabulate how many ivory lots were ultimately sold. 
Therefore, the percentage of live auctions selling ivory items and the 
number of ivory items sold is unknown. While we recognize that the 
impact on non-antique ivory sales in live auctions may be greater than 
the range of $72,600 to $1.3 million, we do not have information 
regarding the underlying distribution of potentially impacted auctions. 
However, based on publicly available information, we can estimate that 
there are as many as 8,097 auction houses in the United States that may 
sell ivory. Therefore, we expect that more than 14 auction houses sell 
ivory lots in a given year, but we have no basis to estimate the number 
of auction houses actually selling ivory or the quantity of ivory 
offered for sale. Due to the data limitations for live auctions and the 
methodology used in the 2014 IFAW report noted above, we are unable to 
extrapolate the 2014 IFAW report to a national estimate.
    Table 2 summarizes the estimated domestic ivory sales from online 
auctions, live auctions, retail stores, and exports. IFAW reported that 
online auction sales and live auction sales should not be summed due to 
potential double counting because 50 percent of the live auctions also 
sold items online. However, for the purpose of this analysis, because 
live auctions were not extrapolated nationwide, data from both online 
and live auctions are summed. For live auction sales, the lower bound 
was estimated using the average price per lot in online auction sales 
($992), while the upper bound was estimated using the highest lot sold 
price in live auction sales ($18,000). For retail stores, the lower 
bound was estimated using the average price per lot in online auction 
sales ($992), while the upper bound was estimated using the highest lot 
sold price in live auctions ($18,000). By extrapolating data from a 
variety of sources, we estimate that domestic ivory sales are between 
$88.8 million and $1.2 billion annually.
    Assuming that the domestic market is similar to the export market, 
we estimate non-antique worked ivory domestic sales will decrease by 
about $1.8 million to $23.4 million annually (two percent of domestic 
sales) under this rule. We are not aware of any other data (in 
published reports or public comments) that estimate a larger percentage 
by value of non-antiques in the marketplace. Without data for a 
plausible range of impacts, we cannot improve the robustness of the 
analysis with a sensitivity analysis (Economists Incorporated 2016). 
Thus, non-antique sales in the domestic market would decrease by $1.8 
million and $23.4 million annually.
    Because we will allow intrastate sales and domestic and foreign 
commercial activities with certain items containing de minimis amounts 
of ivory, and many of these items will be precluded from export, it is 
possible that an even smaller percentage of the domestic market will be 
impacted compared to the export market. Our proposed rule requested 
information from the public about the potential impact to the domestic 
market. One commenter estimated the antique ivory in private American 
collections is worth $11.9 billion; however, trade in items that 
qualify as ESA antiques will not be affected by this rule.
    The total annual decrease in non-antique ivory sales from exports, 
U.S. auctions, and retail stores, will represent two percent of all 
ivory sales. Thus, we expect that total ivory sales, including exports 
and sales in the domestic market, will decrease by $3.9 million to 
$25.5 million annually under this rule (see Table 2).

                                                  Table 2--Potential Total Impact to Annual Ivory Sales
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Lower bound estimate                   Upper bound estimate
                                                                Number of  -----------------------------------------------------------------------------
                        Type of seller                            ivory       Average                 Non-antique    Average                 Non-antique
                                                               items: 2016   price per   Total sales     sales      price per   Total sales     sales
                                                                 estimate       item       ($,000)      ($,000)        item       ($,000)      ($,000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Online Auctions..............................................       26,312         $992    $26,097.0       $574.1         $992    $26,097.0       $574.1
Live Auctions................................................        3,332          992      3,302.0         72.6       18,000     59,976.0      1,319.5
Retail Stores................................................       59,847          992     59,367.8      1,187.4       18,000  1,077,238.8     21,544.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Domestic Sales.....................................       89,491          992     88,766.9      1,834.1       15,069  1,163,311.8     23,438.4
        Total Export Sales...................................        1,040       79,000     92,963.5      2,062.0       79,000     92,963.5      2,062.0
                                                              ------------------------------------------------------------------------------------------
    Total....................................................       90,531  ...........    181,730.4      3,896.1  ...........  1,256,275.3     25,500.4
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Revising the 4(d) rule for the African elephant will 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 taking 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 final 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

[[Page 36414]]

market and foreign markets where commercial activities involving 
elephant ivory are conducted by U.S. citizens will benefit the 
conservation of the African elephant.
    Regulatory Flexibility Act: Under the Regulatory Flexibility Act 
(as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever a Federal agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions) (5 
U.S.C. 601 et seq.). However, no regulatory flexibility analysis is 
required if the head of an agency certifies that the rule will 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 will 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 focused 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 in average annual receipts; (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 average annual receipts; (7) Art Dealers (NAICS 
453920), where small businesses have less than $7.5 million in average 
annual receipts; (8) All other miscellaneous store retailers except 
tobacco (NAICS 453998), where small businesses have less than $7.5 
million in average annual receipts; (9) All other support services, 
which includes independent auctioneers (NAICS 561990), where small 
businesses have less than $11.0 million in average annual receipts; and 
(10) Electronic Auctions (NAICS 454112), where small businesses have 
less than $35.5 million in average annual receipts. Table 3 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. Therefore, we utilized various 
sources and public comments to estimate the potential number of 
businesses impacted. Based on the distribution of small businesses with 
these industries as shown in Table 3, 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 3--Distribution of Businesses Within Affected Industries
----------------------------------------------------------------------------------------------------------------
                                                                                   Percentage of   Percentage of
           NAICS Code                       Description            Total number        small        businesses
                                                                   of businesses    businesses       impacted
----------------------------------------------------------------------------------------------------------------
339992..........................  Musical instrument                         597              73              <3
                                   manufacturing.
423910..........................  Sporting and recreational                5,953              97              <3
                                   goods and supplies merchant
                                   wholesalers.
321999..........................  All other miscellaneous wood             1,763             100              <3
                                   product manufacturing.
332215..........................  Metal kitchen cookware,                    188              99              <3
                                   utensil, cutlery, and
                                   flatware (except precious)
                                   manufacturing.
339910..........................  Jewelry and silverware                   2,119             100              <3
                                   manufacturing.
453310..........................  Used merchandise stores.......          19,793              74              10
453920..........................  Art dealers...................           4,937              95              10
454112..........................  Electronic Auctions...........             431              99               1
453998..........................  All other miscellaneous store           15,475              83  ..............
                                   retailers except tobacco
                                   (includes auction houses).
561990..........................  All other support services              12,940              84  ..............
                                   (includes independent
                                   auctioneers).
----------------------------------------------------------------------------------------------------------------
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. Thus, we expect that individual businesses may face a range 
of impacts from closure to minimal revenue decrease. We do not have 
sufficient information on business profiles to determine with certainty 
the percent of revenues affected by the rule, but we do estimate the 
potential impacts using the best available data.
    For auctions (NAICS 453998 and NAICS 561990), IFAW reported that 
``In general, ivory constituted a small part of all the respondents' 
overall inventories--somewhere between 1 and 5 percent.'' Since sale of 
antique ivory will still be allowed under this rule, we expect that a 
smaller percentage of inventories will be impacted. Thus, this rule 
will not have a significant impact on auctions.
    For electronic auctions (NAICS 454112), IFAW reported that about 
five online auction aggregator Web sites may sell ivory products while 
noting that

[[Page 36415]]

eBay and Etsy no longer permit the sale of ivory products. Five 
establishments out of 420 small electronic auctions does not constitute 
a significant number of small businesses.
    Table 4 shows the distribution of impacted retail outlets by size 
category. We assume that the impacted retail outlets will have the same 
size category distribution as the population of establishments. Small 
businesses for these industries have annual receipts less than $7.5 
million. For the purpose of this analysis, we include impacted 
businesses that earn less than $10 million or do not operate the entire 
year. Under these criteria, 2,354 businesses (10 percent) would be 
categorized as small.

                        Table 4--Distribution of Impacted Retail Outlets by Size Category
                                         [NAICS 453310 and NAICS 453920]
----------------------------------------------------------------------------------------------------------------
                                                                                                     Number of
                                                                                   Percentage of    businesses
     Size category by sales/receipts/revenue           Total       Percentage of     sales by        impacted
                                                  establishments  establishments      revenue         (2,720
                                                                                     category       nationwide)
----------------------------------------------------------------------------------------------------------------
Less than $250,000..............................           7,304              30               4             804
$250,000 to $499,999............................           3,223              13               6             355
$500,000 to $999,999............................           2,459              10               8             271
$1,000,000 to $2,499,999........................           1,922               8              12             212
$2,500,000 to $4,999,999........................             926               4               9             102
$5,000,000 to $9,999,999........................             705               3               7              78
$10,000,000 to $24,999,999......................           1,443               6              15             159
$25,000,000 to $49,999,999......................             931               4              10             400
Firms not operated for the entire year..........           3,635              15               3             102
$50,000,000 to $99,999,999......................             459               2             (D)              51
$100,000,000 to $249,999,999....................             366               1             (D)              40
$250,000,000 or more............................           1,339               5             (D)             147
----------------------------------------------------------------------------------------------------------------
(D) Data withheld by U.S. Census Bureau to avoid disclosing data for individual companies.

    Table 5 shows the potential impact to retail outlets. We assume 
that non-antique ivory sales are distributed at the same percentage of 
total sales within each size category. Thus, businesses with annual 
receipts less than $250,000 would be allocated four percent of non-
antique ivory sales (Table 4). Under the lower bound estimate, small 
businesses would incur losses of 0.02 percent to 0.06 percent of sales. 
Under the upper bound estimate, small businesses would incur losses of 
0.3 percent to 1.1 percent of sales. Therefore, this rule does not have 
a significant economic impact on retail outlets.

                                                       Table 5--Potential Impact to Retail Outlets
                                                            [NAICS 453310 and 453920 ($,000)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Number of                 Lower bound                              Upper bound
                                                            businesses  --------------------------------------------------------------------------------
       Size category by sales/receipts/ revenue \1\          impacted     Total  non-                 Percent of  Total  non-                 Percent of
                                                              (2,720        antique     Ivory sales   sales per     antique     Ivory sales   sales per
                                                            nationwide)   ivory sales  per business    business   ivory sales  per business    business
--------------------------------------------------------------------------------------------------------------------------------------------------------
Less than $250,000.......................................           804         $52.0          $0.1         0.05       $943.2          $1.2         0.94
$250,000 to $499,999.....................................           355          68.2           0.2         0.06      1,237.0           3.5         1.07
$500,000 to $999,999.....................................           271          97.9           0.4         0.05      1,775.6           6.6         0.87
$1,000,000 to $2,499,999.................................           212         145.0           0.7         0.04      2,631.1          12.4         0.71
$2,500,000 to $4,999,999.................................           102         102.0           1.0         0.03      1,850.1          18.2         0.48
$5,000,000 to $9,999,999.................................            78          88.4           1.1         0.02      1,604.8          20.7         0.28
$10,000,000 to $24,999,999...............................           159         181.5           1.1         0.01      3.294.2          20.7         0.12
Firms not operated for the entire year...................           400          37.5           0.1         0.07        680.0           1.7         1.36
$25,000,000 to $49,999,999...............................           102         116.8           1.1        <0.01      2,120.0          20.7         0.06
                                                          ----------------------------------------------------------------------------------------------
$50,000,000 to $99,999,999...............................            51                                        (D)
$100,000,000 to $249,999,999.............................            40
$250,000,000 or more.....................................           147
--------------------------------------------------------------------------------------------------------------------------------------------------------
 (D) Data withheld by U.S. Census Bureau to avoid disclosing data for individual companies.
\1\ Source: U.S. Census Bureau 2012.

    One commenter estimated that there are about seven people in the 
United States who purchase tusks (from individuals who imported them 
prior to 1989) and cut them into a variety of forms for U.S. craftsmen 
to finish. These craftsmen work the ivory pieces into finished 
products, including pool cues, knife handles, and piano keys. He 
estimated that there are about 15 individuals making pool cues with 
ivory ferrules and that there are a total of about 300 people in the 
United States creating finished products using ivory components. This 
rule will impact craftsmen working with ivory in the United States. 
While the commenter does not provide data regarding the

[[Page 36416]]

industries under which these 300 establishments would be categorized, 
we can estimate that the potential number of establishments represents 
two percent of establishments in the affected industries (NAICS 339992, 
423910, 321999, 332215, and 339910) or three percent of establishments 
in the affected industries (NAICS 339992, 321999, 332215, and 339910). 
Therefore, this rule does not impact a significant number in the 
affected industries. The final rule does not impact intrastate (within 
a State), commerce so those buying and selling within the State in 
which they reside will be able to continue to do so (where such 
activity is allowed under State law). In addition, there are 
alternative materials available to craftsmen, including mammoth ivory 
and ivory substitutes, which may decrease some impacts.
    This rule has an economic impact on U.S. craftsmen working with 
elephant ivory because it prohibits the interstate sale of items 
containing African elephant ivory manufactured after the effective 
date. Martin and Stiles estimated in their 2008 report that there are 
``a minimum of 120 craftsmen, including restorers, working in ivory at 
least several weeks a year'' and that the ``general feeling [at that 
time] was that the number has been decreasing over past years, with 
older people retiring and fewer young people replacing them.'' One 
commenter estimated that domestic ivory carvers sell $1.5 million per 
year in ivory blanks to other craftsmen. We did not receive from 
commenters, and we are not able to provide, an estimate of the total 
value of products produced by such craftsmen. One commenter estimated 
that yearly sales of cue sticks containing ivory amount to $1.7 million 
per year. To the extent that these craftsmen are unable to utilize 
alternate materials (including, for example, mammoth ivory, cow bone, 
or deer antler) and that their business is conducted across State 
lines, they will be impacted by this rule.
    Overall, we estimate that worked ivory exports will decrease about 
$2.1 million annually, which represents about two percent of the total 
declared value of worked ivory exported from 2007 to 2011. This 
estimate is based on the total declared value of worked African 
elephant ivory exported from the United States. The declared value of 
items containing African elephant ivory that were less than 100 years 
old (and, therefore, could not qualify as antiques) ranged from 
$607,000 to $3.7 million annually. The best available information does 
not provide any indication that there are differences in the 
proportion, by value, of antiques in domestic and foreign commerce. 
Therefore, we also estimate that domestic sales will decrease by up to 
two percent annually. Based on our estimate of the domestic ivory 
market to be about $88.8 million to $1.2 billion, we estimate that 
domestic sales will decrease by $1.8 million to $23.4 million annually. 
This sales decrease of two percent will be incurred among the various 
businesses and industries, which would face a range of impacts from 
minimal revenue decrease to closure. Because we are allowing domestic 
commercial activities with certain items containing de minimis amounts 
of ivory, and many of these items will be precluded from export, it is 
possible that an even smaller percentage of the domestic market will be 
impacted compared to the export market.
    Based on the available information, we do not expect these changes 
to have a substantial economic impact. Thus, we do not expect the rule 
to have a significant economic impact on a substantial number of small 
entities. We, therefore, certify that this rule will not have a 
significant economic effect on a substantial number of small entities 
as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
A Regulatory Flexibility Analysis is not required. Accordingly, a Small 
Entity Compliance Guide is not required.
    This rule creates no substantial fee or paperwork changes in the 
permitting process. The regulatory changes require issuance of ESA 
permits for import of all sport-hunted African elephant trophies. We 
estimate that we will 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 rule is 
not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory 
Enforcement Fairness Act. This rule:
    a. Will not have an annual effect on the economy of $100 million or 
more. This rule revises the 4(d) rule for African elephant, which makes 
the African elephant subject to the same provisions applied to other 
threatened species not covered by a 4(d) rule, with certain exceptions. 
It will allow us to effectively regulate ivory trade in the United 
States and to ensure that the U.S. market for ivory is not contributing 
to poaching of elephants in Africa and the illegal ivory trade, without 
unnecessarily restricting activities that have no conservation effect 
or are strictly regulated under other law. This rule will not have a 
negative effect on this part of the economy. It will affect all 
importers, exporters, re-exporters, and domestic and certain traders in 
foreign commerce of African elephant ivory equally, and the impacts 
will be evenly spread among all businesses, whether large or small.
    b. Will not cause a major increase in costs or prices for 
consumers; individual industries; Federal, State, tribal, or local 
government agencies; or geographic regions.
    c. Will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
    Unfunded Mandates Reform Act: Under the Unfunded Mandates Reform 
Act (2 U.S.C. 1501 et seq.):
    This rule does not impose an unfunded mandate on State, local, or 
tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. The final rule 
imposes no unfunded mandates. A statement containing the information 
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is 
not required.
    Takings: This rule does not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630. While 
certain activities that were previously unregulated will now be 
regulated, possession and other activities with African elephant ivory 
such as sale in intrastate commerce will remain unregulated under 
Federal law. A takings implication assessment is not required.
    Federalism: Under the criteria in section 1 of Executive Order 
13132, this rule does not have sufficient federalism implications to 
warrant the preparation of a federalism summary impact statement. These 
revisions to 50 CFR part 17 do not contain significant federalism 
implications. A federalism summary impact statement is not required.
    Civil Justice Reform: This rule complies with the requirements of 
Executive Order 12988. Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and

[[Page 36417]]

    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.
    Consultation with Indian 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.
    Paperwork Reduction Act: This rule contains a new information 
collection requirement associated with applications for permits to 
import sport-hunted African elephant trophies (FWS Form 3-200-19). This 
new requirement requires approval of the Office of Management and 
Budget (OMB) under the PRA.
    Under current regulations, permits are required for import of 
sport-hunted African elephant trophies only from certain countries. OMB 
has reviewed and approved the collection of information under the 
current regulations and assigned OMB Control Number 1018-0093, which 
expires May 31, 2017.
    This final rule increases protection for and benefits the 
conservation of African elephants by more strictly controlling U.S. 
trade in ivory, without unnecessarily restricting activities that have 
no conservation effect or are strictly regulated under other law. We 
are taking this action in response to an unprecedented increase in 
poaching of elephants across Africa to supply an escalating illegal 
trade in ivory. This rule requires permits for import of all African 
elephant sport-hunted trophies; i.e., from both Appendix-I and 
Appendix-II populations. We requested that OMB approve, on an emergency 
basis, our request to collect information associated with permits to 
import African elephant sport-hunted trophies from Appendix-II 
populations. We asked for emergency approval because of the potential 
negative effects of delaying publication of this final rule. OMB 
approved our request and assigned OMB Control No. 1018-0164, which 
expires November 30, 2016.
    Title: Import of Sport-Hunted African Elephant Trophies, 50 CFR 17.
    OMB Control Number: 1018-0164.
    Service Form Number: 3-200-19.
    Type of Request: Request for a new OMB control number.
    Description of Respondents: Individuals.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.
    Estimated Number of Respondents: 300.
    Estimated Number of Annual Responses: 300.
    Estimated Completion Time per Response: 20 minutes.
    Estimated Total Annual Burden Hours: 100.
    Estimated Total Nonhour Burden Cost: $30,000 associated with 
application fees.
    We will publish a notice in the Federal Register announcing our 
intent to seek regular (3-year) approval for this information 
collection requirement and soliciting public comment for 60 days. At 
any time, interested members of the public and affected agencies may 
comment on the information collection requirements contained in this 
rule. Please send comments to the Information Collection Clearance 
Officer, U.S. Fish and Wildlife Service, MS BPHC, 5275 Leesburg Pike, 
Falls Church, VA 22041-3803 (mail); or hope_grey@fws.gov (email).
    National Environmental Policy Act (NEPA): This rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment. A detailed statement under the National 
Environmental Policy Act of 1969 is not required because we conducted 
an environmental assessment and reached a Finding of No Significant 
Impact. This finding and the accompanying environmental assessment are 
available online at https://www.regulations.gov at Docket Number FWS-HQ-
IA-2013-0091.
    Energy Supply, Distribution, or Use: This rule is not a significant 
energy action under the definition in Executive Order 13211. A 
Statement of Energy Effects is not required. This final rule revises 
the current regulations in 50 CFR part 17 regarding trade in African 
elephants and African elephant parts and products. This final rule will 
not significantly affect energy supplies, distribution, or use.

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.

Regulation Promulgation

    For the reasons given in the preamble, we amend title 50, chapter 
I, 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. The African Elephant 
Conservation Act (16 U.S.C. 4201 et. seq.), and any moratorium under 
that act, also applies. 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.

[[Page 36418]]

    (3) Interstate and foreign commerce of ivory. Except for antiques 
and certain manufactured or handcrafted 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 or 
handcrafted 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 or integral component or components of a 
larger manufactured or handcrafted item and is not in its current form 
the primary source of the value of the item, that is, the ivory does 
not account for more than 50 percent of the value of the item;
    (iv) The ivory is not raw;
    (v) The manufactured or handcrafted item is not made wholly or 
primarily of ivory, that is, the ivory component or components do not 
account for more than 50 percent of the item by volume;
    (vi) The total weight of the ivory component or components is less 
than 200 grams; and
    (vii) The item was manufactured or handcrafted before July 6, 2016.
    (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 of this part 
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) or equivalent CITES 
document;
    (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 or 
handcrafted 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 
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 or handcrafted 
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), (e)(7), (e)(8), and (e)(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, 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

[[Page 36419]]

(e)(3) of this section regarding manufactured or handcrafted 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 or 
handcrafted 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. Nevertheless, nothing in this rule interprets 
or changes any provisions or prohibitions that may apply under the 
African Elephant Conservation Act (16 U.S.C. 4201 et seq.), 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.
* * * * *

    Dated: May 27, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-13173 Filed 6-3-16; 8:45 am]
BILLING CODE 4333-15-P