[Federal Register: August 18, 2003 (Volume 68, Number 159)]
[Page 49512-49518]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Draft Policy for Enhancement-of-Survival Permits for Foreign 
Species Listed Under the Endangered Species Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: We, the Fish and Wildlife Service, (the FWS) announce a Draft 
Policy for ``Enhancement of Survival'' permits for foreign species 
listed under the Endangered Species Act of 1973, as amended (ESA). This 
policy would provide guidance under which we will consider the issuance 
of Section 10(a)(1)(A) enhancement-of-survival permits as incentives to 
encourage conservation of foreign-listed species in the wild. Permits 
to allow the import of foreign-listed species or their parts or 
products would only be considered in certain limited situations if such 
action enhances the survival of the species in the wild. Enhancement 
must be demonstrated through support of a substantive conservation 
program for that species in the range country with a positive benefit 
for the species and/or its habitat. The in-situ conservation actions 
envisioned by implementing this policy otherwise would not occur or 
would be significantly reduced, absent the issuance of permits to 
encourage range countries to develop and implement such programs or to 
encourage applicants within the United States to become active 
participants in range country conservation actions.
    The ESA and existing regulations provide full authority for 
issuance of these permits. However, in the past we have generally 
chosen to limit these types of permits for ESA-listed foreign species. 
We now believe there could be a greater conservation benefit by 
providing for the import and export of carefully selected ESA-listed 
foreign species, or their parts and products, that are obtained from 
captive-breeding programs or well-managed conservation programs that 
limit removal from the wild and further promote and advance the 
conservation of the species within range countries.
    This draft policy presents guidance to help the public understand 
the requirements for issuance of permits under the ESA. It is not 
intended to be prescriptive or to necessarily prohibit or allow any 
public or private activity. We seek public comment on this proposed 
draft policy.

DATES: Comments on the draft policy must be received by October 17, 

ADDRESSES: Send any comments or materials concerning the Draft Policy 
for Enhancement-of-Survival Permits for Foreign Species to the Chief, 
Division of Management Authority, U.S. Fish and Wildlife Service, 4401 
North Fairfax Drive, Room 700, Arlington, Virginia 22203 (Telephone, 
703-358-2093; fax, 703-358-2280; e-mail, ManagementAuthority@fws.gov).
    Comments received will be made available to the public and become 
part of the file for this policy. You may examine comments and 
materials received during normal business hours at the above address in 
Arlington, Virginia. You must make an appointment to examine these 

FOR FURTHER INFORMATION CONTACT: Kenneth Stansell, Assistant Director, 
International Affairs. (Telephone, 202-208-6393).


The Application of the Endangered Species Act to Foreign Species 

    Approximately 40 percent of all species listed under the ESA are 
foreign species whose natural range occurs outside the United States. 
Of these, approximately 80 percent are listed as endangered and 20 
percent are listed as

[[Page 49513]]

threatened. Under the ESA's listing process, foreign and domestic 
species are treated equally, and the biological criteria used for 
determining the appropriate classification of threatened or endangered 
species are the same. However, most of the key conservation provisions 
of the ESA do not apply to foreign species. Habitat conservation 
planning mechanisms, recovery planning and implementation, most Section 
7 consultations, and the Section 6 grant-in-aid program do not apply to 
ESA-listed foreign species. Even the fundamental conservation tool of 
prohibition of take (defined by the ESA as killing, capturing, 
collecting, harassing, and related activities) is limited to actions 
taken within the United States, the territorial seas of the United 
States, or on the high seas (i.e., when committed by persons under the 
jurisdiction of the United States). In some situations, listing under 
the ESA may provide few, if any, additional benefits and may complicate 
the implementation of conservation initiatives under other 
international authorities, such as the Convention on International 
Trade in Endangered Species of Wild Fauna and Flora (CITES).
    The ESA specifically addresses foreign species under Sections 8 and 
8A by providing the authority to allow for international convention 
implementation for CITES and to enter into other such treaties, and to 
otherwise cooperate with other countries for the purpose of conserving 
listed species. We have been able to use these authorities to encourage 
conservation of ESA-listed foreign species in certain countries where 
bilateral conservation programs have been developed, such as the 
Pakistan markhor example cited below. However, opportunities for such 
activities are limited in comparison to the larger number of ESA-listed 
foreign species and the many countries of the world in which they 
occur. Where these programs occur, range countries retain ultimate 
responsibility and authority for implementing conservation measures for 
their resident species.
    Several other domestic measures, such as the African Elephant 
Conservation Act and the Wild Bird Conservation Act, work to encourage 
the conservation of foreign species also listed under the ESA. Under 
certain conditions, these statutes allow for the sustainable use and/or 
management of foreign species and recognize the limited, ancillary 
nature of the United States's ability to influence foreign species 
    Ultimately, the incentives that the United States can employ to 
encourage conservation activities for foreign species in other 
countries are limited, and we need to consider the use of every 
possible means available. In practical terms, one of the few available 
means for encouraging the conservation of foreign endangered species is 
through our decisions about whether to issue import permits. Permits 
can be issued for purposes of scientific research or the enhancement of 
survival for endangered species. For threatened species, permits can be 
issued for those same purposes as well as for zoological exhibition, 
educational purposes, or special purposes consistent with the purposes 
of the ESA. The FWS goal of using the permits program to promote the 
long-term conservation of animals, plants, and their habitats is 
outlined in a recent publication, ``Leaving a Lasting Legacy'' (http://permits.fws.gov
    However, this permitting authority is not being fully used even 
though it is internationally recognized as one of the most effective 
conservation tools employed by CITES and other multilateral 
international agreements. Implementing this policy could encourage 
proactive conservation through the use of ``enhancement of survival'' 
findings to allow for imports that result from programs that 
significantly advance the conservation of a species within a given 
range country.
    This concept is consistent with a Federal District Court's 
rationale in Defenders of Wildlife, Inc. v. Watt (1981), which upheld 
our decision to lift a prior ban on the importation of kangaroo parts 
and products in recognition of and in response to kangaroo conservation 
activities undertaken by Australia. The court found that the 
``application of the Act to the kangaroo is necessarily collateral in 
nature, and the well-being of the species can only be ensured by the 
government of Australia.'' Further, the court ruled that ``while the 
Defendants have some resources at their disposal (e.g., import 
restrictions), to effectuate the Act, the effectiveness of these 
resources depends on Defendants' ability to encourage Australia to 
protect the kangaroo.'' The potential for removal of the import ban 
then imposed under the ESA was an important aspect of these 
negotiations. It was used by the United States as an incentive for the 
imposition of a more rigorous and meaningful conservation program by 
    In Defenders, the court recognized that we had no control over the 
species or its natural habitat. Consequently, our ability to protect 
the kangaroo was limited to encouraging, or creating incentives for 
Australia to implement programs designed to ensure the species' well-
being. Since the United States was an important market for kangaroo 
leather parts and products, our decision to lift the import ban was 
essential to encourage Australia to implement stricter conservation 
measures for kangaroos. Lifting the ban ultimately enhanced the status 
of the kangaroo in Australia and achieved the conservation objectives 
of the ESA for the species.

CITES and the Endangered Species Act as Conservation Tools

    Many foreign species of concern to the United States are protected 
not only under the ESA but, also under CITES, a related but distinct 
conservation tool that regulates the international trade in certain 
wild plants and animals. Under CITES, species may be included, after 
approval by a two-thirds majority of CITES parties, in one of two 
Appendices, depending on the degree to which international trade 
impacts the survival of the species. Appendix I includes species 
``threatened with extinction'' and imposes a general ban on trade for 
primarily commercial purposes. Appendix II allows controlled commercial 
trade in species that may become threatened with extinction without 
such controls. The import of an Appendix-I species is allowed if the 
purpose of the import is not primarily commercial and is not considered 
to be detrimental to the survival of the species. The import of an 
Appendix-II species is allowed if the species or its parts and products 
have been legally acquired and the export is not considered to be 
detrimental to the survival of the species. Thus, in all cases CITES 
requires that a ``no detriment'' finding be made for each species and 
country involved, and that appropriate CITES permits be issued.
    The text of the CITES treaty provides for certain exemptions from 
the restrictions on commercial trade in Appendix-I species. Through 
more than 20 years of interpretation and implementation, the CITES 
parties have agreed that the treaty provides significant flexibility in 
determining what kinds of activities are considered to be detrimental 
to the survival of Appendix-I species. Article VII, paragraph 4, of the 
treaty provides that Appendix-I species meeting the CITES definitions 
of ``bred in captivity'' or ``artificially propagated'' may be treated 
as if they are listed in Appendix II, removing the ban on commercial 
trade. Likewise, under certain conditions and with established quotas, 
CITES allows

[[Page 49514]]

the export of sport-hunted trophies of Appendix-I species. While trade 
in such species may not be detrimental, and noncommercial trade can be 
allowed, the CITES treaty includes no requirement that such actions 
directly address the issue of enhancing the conservation of the species 
in the wild.
    CITES also allows for the transfer from Appendix I to Appendix II 
of certain populations of species that can be demonstrated to benefit 
from ``ranching,'' for purposes of trade. A ranching operation must 
primarily benefit conservation of local populations of the species in 
the wild. Ranching involves the development of a management program for 
a specific population of an Appendix-I species, such as Nile crocodiles 
in Zimbabwe. Under this program, crocodile eggs are taken from the wild 
and hatched in captivity, and then some juvenile crocodiles are 
returned to the wild, while others are retained for commercial 
activity. This provides an incentive to protect and recover the wild 
    For native species listed under the ESA, the Congress has directed 
that they be automatically protected from take, in addition to 
prohibitions against commerce and trade. A foreign ESA-listed species 
is protected from importation into the United States and from foreign 
commerce by American citizens, but not from take by an American within 
a foreign country. This reflects the limited extent to which domestic 
U.S. law applies overseas. We have a very different degree of control, 
and thus a very different ability to influence conservation, in other 
sovereign countries that have their own national laws and policies.
    The ESA also provides us with permitting authority in Section 
10(a)(1)(A) to allow for otherwise prohibited activities for listed 
species. This authority allows for the issuance of permits ``for 
scientific purposes, or to enhance the propagation or survival'' of the 
listed species, as well as other purposes for threatened species. The 
net result is that the ESA imposes different and more stringent 
permitting standards for the importation of an endangered species than 
is required under Appendix I of CITES. Under CITES, the issue is 
whether the importation of an Appendix-I foreign species is not 
detrimental to the survival of the species. Under the ESA, the issue is 
whether the importation of a foreign species enhances the survival of 
the species.

Special Rule Authority for Foreign Species Listed as Threatened

    The ESA allows for the promulgation of special rules under Section 
4(d) for threatened species. Special rules can be used to authorize 
permits for activities consistent with the specific conservation needs 
of a species and may be less restrictive than for endangered species. 
Using this Section 4(d) authority, we have issued regulations to allow 
for the importation of sport-hunted trophies of certain foreign species 
listed as threatened. Likewise, we have lifted restrictions on the 
import of products from several foreign species listed as threatened 
when we determined that lifting the import ban would be an incentive 
for the development of a more rigorous conservation program in the 
range state.
    Examples of the use of the special rule authority include African 
elephants and saltwater crocodiles. The African elephant is listed as 
threatened with a special rule that allows for the import of sport-
hunted trophies where it can be clearly demonstrated that the range 
country has established and is implementing a conservation program 
using regulated sport hunting as a tool to enhance the survival of the 
species. Several species of salt water crocodiles from Africa and 
Australia are listed as threatened with a special rule that allows the 
import of crocodile parts and products from certain managed populations 
to encourage and help create an incentive for the development of more 
rigorous conservation programs in affected range countries.
    The need exists to address legitimate conservation issues affecting 
foreign ESA-listed species on a case-by-case basis, without sole 
reliance on a reclassification from endangered to threatened status so 
that Section 4(d) may be applied. The benefits of an innovative 
conservation program should not be limited solely to species that have 
already met the standard for reclassification to threatened status. 
Based on our experience in international conservation efforts, we 
believe that in some limited situations, the only way for the United 
States to participate in programs to improve the status of an 
endangered species is to allow import of specimens, parts, or products 
from well-regulated taking programs, if the programs are designed to 
promote conservation of the species in the wild. By making such 
determinations on a case-by-case basis, we expect that issuance of such 
permits will facilitate further conservation efforts that could lead to 
reclassification of a species from endangered to threatened, or off the 
ESA list completely.

Enhancement Findings for Foreign Species Listed as Endangered

    As indicated, we have been able to make the necessary ``no 
detriment'' CITES finding and the ESA's ``enhancement of survival'' 
finding for some activities that involve the direct removal of 
individuals from the wild for several foreign species listed in 
Appendix I that are also listed as threatened under the Act. While 
Section 10(a)(1)(A) of the ESA actually allows for the issuance of 
import permits to enhance the survival of foreign species listed as 
endangered, if the necessary enhancement finding can be made, we have 
historically interpreted the enhancement standard for foreign 
endangered species fairly narrowly. This practice has resulted in the 
routine denial of applications for the import of foreign species listed 
as endangered if the import would cause the killing of any individual 
in the wild, even in those situations involving a CITES-approved export 
program or other substantive conservation program. This has included 
the denial of applications for the import of parts and products from 
ranched populations, import of specimens meeting CITES requirements for 
specimens bred in captivity or artificially propagated for commercial 
purposes, sport-hunted trophies from countries with CITES-approved 
quotas for the species involved, and international movement of live 
zoological specimens.
    The traditional, narrow approach to enhancement findings for 
actions that would result in the killing or removal from the wild of a 
foreign endangered species has precluded the use of the import permit 
as a proactive tool and incentive for foreign species conservation. We 
now believe that in some situations we could achieve a greater 
conservation benefit by providing for the importation of carefully 
selected foreign endangered species, or threatened species lacking (or 
in lieu of) a Section 4(d) rule, in exchange for a substantive and 
comprehensive conservation plan that offsets a limited take and further 
promotes the conservation of the species within the range country. An 
enhancement finding could be used as a more flexible proactive 
conservation tool to encourage the development of such substantive 
conservation plans for foreign species listed as endangered. Such an 
approach would help us expand the effectiveness of the ESA in meeting 
the growing habitat protection needs of foreign wildlife. Further, by

[[Page 49515]]

limiting the scope of such enhancement-of-survival findings to the 
development and implementation of foreign species management plans by 
the relevant range country, we can create a real incentive for foreign 
nations to establish programs that conserve both wildlife and habitat 
through the use of this approach in the most appropriate and compelling 

Examples of Potential Application

    Several current examples serve to illustrate the potential 
application of this new proposed enhancement-of-survival policy. These 
include the Morelet's crocodile in Mexico; the Asian bonytongue fish in 
Indonesia, Thailand, and Malaysia; the wood bison in Canada; the 
markhor in Pakistan; and the Asian elephant in India, southeast Asia, 
and China. These examples represent species with similar listing status 
under the ESA but significantly different conservation issues and 
opportunities under the proposed policy.

Morelet's Crocodile

    The Morelet's crocodile (Crocodylus moreletii) is a freshwater 
crocodile found along the Atlantic coast of Mexico, Guatemala, and 
Belize. It is listed as endangered throughout its entire range and is 
also listed in Appendix I of CITES. These listing actions were deemed 
warranted due to substantial population declines as a result of habitat 
loss and poaching. All three range countries have enacted laws 
protecting the Morelet's crocodile within their territories. However, 
given the current population status and continuing threats, it is 
doubtful that the species would qualify under the ESA for 
    Part of Mexico's conservation program for this species allows a 
regulated removal of live specimens from the wild to establish parental 
stock for captive-breeding operations. This practice is part of a 
comprehensive conservation and management program for Morelet's 
crocodiles, which includes sustainable use of the species to encourage 
its conservation. As part of that program, a significant number of 
young are annually returned to the wild, and enhancement actions are 
focused on the wild populations. As a result of this management 
program, Mexico had been able to register its captive-breeding 
facilities with CITES to allow international commercial trade. In the 
case of specimens originating from CITES-registered breeding 
facilities, the species is treated as a CITES Appendix-II species, and, 
therefore, only a CITES export permit issued by the exporting country 
is necessary. However, this international trade is still excluded from 
the United States because of the species' endangered status under the 
    The FWS recognizes that crocodilian species managed as a 
sustainable resource in some cases can be utilized for commercial 
purposes while not adversely affecting the survival of the species. 
When certain positive conservation conditions have been met, we have 
acted to allow utilization and trade from managed populations of the 
American alligator (Alligator mississippiensis), Nile crocodile 
(Crocodylus niloticus), and saltwater crocodile (Crocodylus porosus). 
Under the proposed policy, we would consider allowing the importation 
of products produced by these captive-breeding facilities if they can 
demonstrate a clear enhancement of the wild population. The potential 
for trade with the United States, a major importer of leather products, 
could further encourage Mexico to intensify its conservation efforts 
for this species in the wild to meet the stricter import requirements 
under the ESA.

Straight-horned Markhor

    The Pakistan population of straight-horned markhor (Capra falconeri 
jerdoni) is listed as endangered under the ESA and included in Appendix 
I of CITES. A sport-hunted export quota for Pakistan was approved by 
CITES in 1997. While reclassification of the subspecies within Pakistan 
under the ESA is not considered likely due to continuing concerns about 
the overall status of the subspecies, the Torghar Hills region of 
Pakistan has a successful community-based management program that has 
significantly enhanced the conservation of local markhor populations. 
Under this example, this proposed policy could allow consideration of 
applications for the importation of sport-hunted trophies from this 
population, if the necessary enhancement finding could be made, as an 
incentive to continue and expand the conservation program for this 
    In the early 1980s, local leaders of the Baluchistan Province 
became alarmed at the dramatic decline in markhor and other wildlife 
populations in the Torghar Hills region. The decline was attributed to 
a significant increase in poaching. In 1984 they sought assistance from 
professional wildlife biologists in the United States on the design of 
a scientifically based management program for the markhor and other 
species, and the Torghar Conservation Project was initiated. The 
project was simple. Local tribesmen were requested to refrain from 
hunting in exchange for being hired as salaried game guards to prevent 
poachers from entering the Torghar Hills region. Game guard salaries 
and other costs of the project would be defrayed entirely by trophy 
fees paid by foreign hunters to take a small, strictly controlled, 
annual quota based on the best biological information available on the 
status of the markhor and other wildlife species in the area.
    Currently, the project employs more than 50 local game guards, 
protecting approximately 1,000 km\2\ of habitat. The project has 
eliminated poaching in this core protection area, and, as a result, 
markhor populations, virtually extirpated by 1984, have increased 
steadily. Since 1994, the markhor population has doubled and is 
considered to be of adequate size and condition to sustain a small (1-
2% of the population) annual trophy harvest. Systematic field surveys 
have been conducted in the region since 1994 as part of the management 
program, supported in part by the FWS through its Wildlife Without 
Borders-India program. The project was maintained informally until 
1994, when an officially registered non-governmental organization, the 
Society of Torghar Environmental Protection (STEP), was established to 
administer the project. Currently participation in this program is 
limited to foreign hunters primarily from Europe. Allowing a limited 
number of U. S. hunters an opportunity to import trophies taken from 
this population could provide a significant increase in funds available 
for conservation and would provide a nexus to encourage continuation 
and expansion of the project into other areas.

Asian Bonytongue

    The Asian bonytongue (Scleropages formosus) is a tropical 
freshwater fish native to Indonesia, Thailand, and Malaysia, and 
islisted as endangered under the ESA and included on Appendix I of 
CITES. Although the species was historically harvested for consumption, 
its demand for the aquarium pet trade, along with other factors such as 
habitat loss, resulted in significant declines throughout its range. 
Reclassification of the species under the ESA is not likely due to 
continuing concern for its overall status. However, since the greatest 
single threat to the species is illegal collection for the pet trade, 
captive propagation that results in a controlled legal supply of 
specimens could significantly reduce the pressure on wild populations. 
Additionally, the breeding of native species in captivity for 

[[Page 49516]]

purposes may, in some cases, facilitate the eventual release to the 
wild of a percentage of the progeny from such operations.
    In 1986, efforts began on the development of captive propagation 
techniques for the Asian bonytongue. In 1992, the first captive-
breeding facility was registered under the requirements of CITES, and 
legal exports began. There are currently 28 registered breeding 
facilities in these three countries, reportedly with an annual 
production level of around 300,000 fish. Each exported specimen is 
marked with a coded microchip to assist law enforcement efforts to help 
ensure that only legally produced fish are traded. The CITES 
requirement for certifying facilities as bred in captivity is designed 
to remove collection pressure on wild populations and ensure that trade 
is not detrimental to the survival of the species, but CITES does not 
require in-situ conservation projects.
    Since the approval of the first captive-breeding facility, we have 
denied several permit applications for the import of captive-bred Asian 
bonytongue. As one of the world's largest importers of aquarium fish, 
the United States could play a significant role in encouraging 
conservation of the Asian bonytongue through the issuance of permits if 
we require, as a condition of issuance of an import permit, that the 
specimens are bred in captivity and, a program is established to 
conserve the species in the wild . Our willingness to consider allowing 
import of captive-bred fish under ``enhancement of survival'' permits 
could provide an incentive for development of new conservation 

Wood Bison

    The wood bison (Bison bison athabascae), native to Canada, is 
currently listed in CITES Appendix II and as an endangered species 
under the ESA. Because the wood bison is an Appendix-II species, 
Canadian wildlife authorities are not required to establish a quota for 
the export of live or trophy animals. Therefore, Canada is actively 
managing their bison population with a variety of management 
techniques, including limited sport-hunting. The FWS is currently 
evaluating whether downlisting the species is warranted under the ESA; 
however, this process is time consuming. Under this proposed policy, if 
an enhancement finding could be made based on Canada's present 
management practices, a limited number of sport-hunted trophies and 
live animals could be imported to further the conservation and recovery 
of the species while the downlisting process continues. A significant 
demand exists for both live animals and sport-hunted trophies in the 
United States. By issuing a limited number of permits that would 
require continuing conservation of the species in the wild the species 
would benefit.
    The free-ranging population of about 5,000 wood bison is restricted 
to 11 herds in the Canadian provinces of Manitoba, Alberta, British 
Columbia, Yukon, and the Northwest Territories. As of 2000, 
approximately 2,500 of the free-ranging animals were in 7 disease-free 
herds. There are also around 400 animals in the Elk Island and Hook 
Lake Salvage captive-held disease-free herds that will be used for 
restocking and recovery purposes. The remaining bison in four herds in 
the Wood Buffalo National Park area are not disease free. It is 
estimated that the provincial and First Nation herds (diseased and 
disease-free combined) will double by 2004 at the present rate of 
increase. The Canadian recovery program goal is the establishment of 4 
free-roaming, disease-free herds of 400 animals each. The recovery team 
estimates this goal will be achieved by the end of 2003. Throughout 
Canada and the United States, 700 to 1,000 animals are in private 
ownership. There are no wild or free-ranging populations in the United 
    The provincial and First Nation herds are managed with 
consideration for the national wood bison objectives: (1) Re-establish 
viable, healthy, free-ranging populations where possible in the 
original range; (2) ensure the genetic integrity of wood bison; (3) 
restore healthy herds for long-term sustainable use (for rural 
communities); and (4) encourage long-term cooperative management 
programs in which rural communities and aboriginal people play an 
integral role. Both the genetic management of the herds and the 
community programs involve limited sport hunting of surplus animals.
    Because of the current listing of wood bison under the ESA, we have 
not issued import permits for sport-hunted trophies. Under this 
proposed policy, however, we could take into account Canada's excellent 
management of the bison. If, by reviewing the management program that 
has been established by the Canadian Government and the First Nations, 
we can determine that the importation of sport-hunted trophies could 
further enhance the survival of the species, then we could consider the 
issuance of a limited number of permits. As with most conservation 
programs around the world, work is limited by the availability of funds 
to carry out the goals of the program. Allowing a limited number of 
imports of sport-hunted trophies and live animals into the United 
States could provide a significant increase in funds available for 
conservation of the species in the wild, and would provide a nexus to 
encourage continuation and expansion of the project into other areas.

Asian Elephant

    The Asian elephant (Elephas maximus) is listed as endangered under 
the ESA and in Appendix I of CITES. The Asian elephant historically 
ranged throughout India, Southeast Asia, and China. However, due to 
extensive habitat loss and poaching, its numbers have been dramatically 
reduced and are restricted to isolated populations within its range. In 
many areas, the species has been extirpated. Given its current status, 
it is very unlikely that the species could be downlisted under the ESA. 
In addition, although the Asian elephant is provided the protection of 
listing in Appendix I, only a limited number of other activities under 
CITES contribute to ensuring the species' survival. While the listing 
of the species in Appendix I does control international trade, this 
listing provides little for the conservation for the species within its 
range. Under this proposed policy, the permitting process could 
contribute to the enhancement of the species through the consideration 
of the importation of live animals when linked with conservation 
efforts within the elephant's range.
    The Asian elephant is one of the more recognized animals to people 
from around the world due to exposure to the species through circuses 
and zoos. The United States has a relatively large population of 
captive Asian elephants. However, captive breeding has not been very 
successful, and the breeding stock is getting old and may soon be 
unable to breed. While offspring, particularly first generation, have 
been born, second-generation offspring have not had reproductive 
success. Therefore, currently, given the breeding animals available, it 
would appear that the captive Asian elephant population within the 
United States will continue to decline. This decline has raised a 
significant demand among the zoo and circus community to obtain 
additional stock from Asia. In relation to this, the number of 
elephants available for export within Asia is increasing due to the 
capture of problem animals and the decline in the use of elephants for 
traditional labor, such as timber harvest. Many countries within the 
elephants' range are facing a crisis due to the inability to handle 
these ``surplus'' animals.

[[Page 49517]]

    Through the implementation of this proposed policy, it would be 
possible to contribute to the species' survival in the wild. By 
providing an opportunity for facilities within the United States to 
apply for and obtain import permits for Asian elephants, on the grounds 
that the importation provides direct conservation benefits to the wild 
population, the ESA could be used to promote in situ conservation 
projects that are funded and supported by U.S. zoos and circuses. In 
addition, under this proposed policy, export of live animals or genetic 
material to promote captive breeding in other countries could also be 
tied to conservation work within the species' natural range.

Other Listed Species

    The species in the above examples are all listed as endangered 
under the ESA, however, we believe that certain threatened species 
could also benefit from this proposed policy. While it is true that a 
significant number of permits issued for threatened species are issued 
for other purposes, the FWS has denied permits for enhancement for 
these species. This policy could be used to promote and encourage 
activities that would provide for in-situ conservation programs for 
threatened, as well as endangered, species.

Policy on Permits for Enhancement of Survival

1. What Is the Purpose of This Policy?

    This policy expands the conditions under which we will consider the 
issuance of import permits under Section 10(a)(1)(A) of the Endangered 
Species Act (ESA), and under our existing regulations found in the Code 
of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32 for enhancement 
of survival of foreign species listed under the ESA as endangered and 
threatened respectively. These permits would be available only in 
certain carefully limited situations where the range country and/or the 
applicants have established a substantive conservation program for the 
species and the import or export meets all relevant requirements and 
resolutions of the Convention on International Trade in Endangered 
Species of Wild Fauna and Flora (CITES). The ultimate goal of permits 
issued under this policy would be to provide incentives to encourage 
developing countries to conserve foreign ESA-listed species and their 
habitats, and to promote in situ conservation efforts by applicants.
    This policy would provide incentives recognizing and supporting 
those range countries that have demonstrated significant commitment to 
implementing conservation programs for endangered species. Under this 
policy the necessary permit finding of ``enhancement of survival'' 
under the ESA would take into consideration the overall net impact, 
both direct and indirect, of allowing the import or export of the 
species or its parts or products, as offset by the implementation of a 
conservation program for that species in the range country.
    The listing of a foreign species under the ESA provides recognition 
of its plight and generally prohibits the import of the species or its 
products into the United States. When such import would involve take of 
animals from the wild or commercial trade, the prohibition on import 
may be in conflict with ranching or captive-breeding operations that 
have been authorized by CITES. The opportunities to influence actual 
species conservation in other countries are limited, since key 
provisions of the ESA, such as recovery, consultation, and prohibitions 
on take, do not apply overseas. The application of the ESA to foreign 
species, and thus the United States' ability to influence their 
conservation, is collateral in nature, with range countries retaining 
ultimate authority and responsibility for species conservation. 
Moreover, the effectiveness of those tools that the ESA does provide 
for foreign species--such as import restrictions--often depends on 
whether their use can help encourage the range country to protect the 
    In recent years many developing countries have seen sustainable-use 
programs as the way to conserve wildlife species and their habitats in 
the face of increasing competition with other land uses. We have used 
the flexibility provided for threatened species in Section 4(d) of the 
Act to adopt special rules allowing for imports of certain sport-hunted 
species, such as African elephants and leopards, and the import for 
commercial purposes of certain crocodile parts and products. Under this 
expanded policy, we will broaden this concept on a limited, case-by-
case basis, through the issuance of Section 10(a)(1)(A) import permits 
for listed species--but only if the necessary enhancement-of-survival 
finding can be made, in addition to all of the findings required by the 
CITES treaty and any relevant resolutions adopted by CITES Parties for 
species also covered by CITES.
    This policy would provide a mechanism to consider the issuance of 
permits under certain circumstances for carefully selected foreign ESA-
listed species in response to a conservation plan that offsets any 
limited take from the wild and further promotes the conservation of the 
species. Such findings would serve to create a real incentive for 
foreign nations to establish programs that conserve both wildlife and 
their habitats. The policy limits the scope of such enhancement-of-
survival findings to the development and implementation of management 
plans in the range country only in appropriate and compelling 
situations, and where applicants can show direct in-situ conservation 
benefit from the proposed activity. This policy would not apply to 
situations that were not fully consistent with CITES. It would also not 
apply where we have adopted or are developing a separate policy on 
import or export permits for a particular species (such as our Policy 
on Giant Panda Permits, published in the Federal Register on August 27, 
1998; 63 FR 45839).

2. What Are the Permit Application Procedures and Issuance Criteria?

    For consideration under this policy guidance, you must follow the 
current application process and issuance criteria as described in our 
regulations at 50 CFR part 17.22, for endangered species, and 50 CFR 
part 17.32, for threatened species. This application process is 
approved by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act; the OMB control number is 
1018-0093.In applying the issuance criteria for applications to import 
a listed species or its parts or products, we may take into account how 
that action may relate to the implementation of a management program 
for that species in the range country, including carefully regulated 
sport hunting and commercial captive breeding and ranching, and whether 
the activity has been authorized under CITES, when so listed.
    Consistent with the ESA and 50 CFR 17.22, notice of each 
application for a permit for endangered species will be published in 
the Federal Register. Each notice will invite the submission from 
interested parties, within 30 days after the date of the notice, of 
written data, views, or arguments with respect to the application, 
prior to issuance of any enhancement-of-survival permit pursuant to 
this policy.

3. How Will This Policy Be Consistent With CITES Requirements and 
Resolutions or Range Country Management Plans?

    For us to consider your permit application under this policy, at 

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one of the following conditions must have been met:
    a. The species (or certain populations of the species) is listed in 
CITES Appendix II, and all trade is in accordance with all requirements 
in CITES Article IV, as well as in accordance with any relevant 
resolutions adopted by the CITES Conference of the Parties; or
    b. The species (or certain populations of the species) is listed in 
CITES Appendix I, and (1) sport-hunted trophies, or other specimens, 
are traded in accordance with all requirements in CITES Article III, as 
well as in accordance with all relevant resolutions and quotas adopted 
by the CITES Conference of the Parties and supported by the United 
States; or (2) commercial trade in ranched or captive bred specimens is 
in accordance with Article VII.4 of CITES and with any relevant 
clarifying resolutions and quotas adopted by the CITES Conference of 
the Parties; or
    c. The species (or a certain population of the species) is covered 
under one or more conservation programs in the range country that have 
support of the relevant management authorities, and these programs 
contribute directly to enhance the survival of the species in the wild.

4. What Benefit to the Species Must Be Shown?

    In addition to the requirements of Part 3 above, you must also 
provide sufficient information for us to be able to reasonably conclude 
that a conservation program has been established in the range country 
for the species that is likely to provide a net benefit to the 
conservation of the species if the import of such species or its parts 
or products is allowed into the United States. You must also 
demonstrate that the application meets all the issuance criteria found 
in our regulations at 17.22(a)(2) and 17.32(a)(2), which among other 
things require that ``. . . the purpose for which the permit is 
required would be likely to reduce the threat of extinction facing the 
species . . .'' Inherent in this context is a substantial contribution 
to the conservation of the species in the wild, through direct or 
indirect means. Your application must involve an activity that meets 
the enhancement standard of Section 10(a)(1)(A) for any import finding 
for a listed species under the ESA, even in situations where such 
imports are not required to meet the CITES standard of ``no 
detriment.'' For example, this will include a determination that 
imports of ranched and captive-bred specimens not only meet the 
requirements of Part 3 of this policy, but also must be derived from a 
program that provides for conservation of the species in the wild.
    A conservation program in the range country must be designed to 
enhance the survival of a species in a manner and at a level such that 
the objective of the program is either to maintain, or restore, 
biologically viable population levels for the long term. The 
conservation program would address relevant determinations of the 
productive capacity of the species and its ecosystem, to ensure that 
cumulative use does not exceed those capacities or the ability of the 
population to reproduce, maintain itself, and perform its role or 
function in its ecosystem. The sustainability of the population may be 
accomplished through the implementation of conservation strategies, 
consistent with the biological characteristics of the species and will 
take into account instances where limited biological data exist. All 
determinations will be made on a case-by-case basis for each species.

Required Determinations

    Since the purpose of this draft policy guidance is to clarify 
existing regulatory authority and provide the public with an 
opportunity for us to consider issuance of permits for certain 
activities, we have determined that this policy would not result in 
significant costs of implementation to the Federal Government or the 
non-Federal program participants. We have also determined that the 
issuance of the proposed policy is categorically excluded under the 
Department of the Interior's NEPA procedures in 516 DM 2 Appendix 1.10. 
Based on the Service's evaluation of the public comments received, if a 
determination is made that an environmental assessment is required in 
accordance with Departmental procedures, an environmental assessment 
will be prepared for public review.

Public Comments Solicited

    We request comments on our Draft Policy on Enhancement of Survival 
Permits. Particularly sought are comments on the issue of the 
relationship of the ESA to foreign-listed species and ways in which the 
ESA can be used to encourage the conservation of such species in the 
range country. We will take into consideration the comments and any 
additional information received by the Service by date specified above 

    Dated: June 27, 2003.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 03-20941 Filed 8-15-03; 8:45 am]