[Federal Register Volume 80, Number 145 (Wednesday, July 29, 2015)]
[Proposed Rules]
[Pages 45154-45180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18487]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-IA-2013-0091; 96300-1671-0000-R4]
RIN 1018-AX84
Endangered and Threatened Wildlife and Plants; Revision of the
Section 4(d) Rule for the African Elephant (Loxodonta africana)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
proposing to revise the rule for the African elephant promulgated under
section 4(d) of the Endangered Species Act of 1973, as amended (ESA),
to increase protection for African elephants in response to the
alarming rise in poaching of the species to fuel the growing illegal
trade in ivory. The African elephant was listed as threatened under the
ESA effective June 11, 1978, and at the same time a rule issued under
section 4(d) of the ESA (a ``4(d) rule'') was promulgated to regulate
import and use of specimens of the species in the United States. This
proposed rule would update the current 4(d) rule with measures that are
appropriate for the current conservation needs of the species. We are
proposing measures that are necessary and advisable to provide for the
conservation of the African elephant as well as appropriate
prohibitions from section 9(a)(1) of the ESA. Among other things, we
propose to incorporate into the 4(d) rule certain restrictions on the
import and export of African elephant ivory contained in the African
Elephant Conservation Act (AfECA) as measures necessary and advisable
for the conservation of the African elephant. We are not, however,
revising or reconsidering actions taken under the AfECA, including our
determinations in 1988 and 1989 to impose moratoria on the import of
ivory other than sport-hunted trophies from both range and intermediary
countries. We are proposing to take these actions under section 4(d) of
the ESA to increase protection and benefit the conservation of African
elephants, without unnecessarily restricting activities that have no
conservation effect or are strictly regulated under other law.
DATES: In preparing the final decision on this proposed rule, we will
consider comments received or postmarked on or before September 28,
2015.
ADDRESSES: You may submit comments by one of the following methods:
Electronically: Go to the Federal eRulemaking Portal:
http://www.regulations.gov. In the Search box, enter FWS-HQ-IA-2013-
0091, which is the docket number for this rulemaking. You may submit a
comment by clicking on ``Comment Now!''
By hard copy: Submit by U.S. mail or hand-delivery to:
Public Comments Processing, Attn: FWS-HQ-IA-2013-0091; Division of
Policy, Performance, and Management Programs; U.S. Fish and Wildlife
Service; 5275 Leesburg Pike, MS: BPHC; Falls Church, VA 22041.
We will not accept email or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section at
the end of SUPPLEMENTARY INFORMATION for further information about
submitting comments).
FOR FURTHER INFORMATION CONTACT: Craig Hoover, Chief, Wildlife Trade
and Conservation Branch, Division of Management Authority; U.S. Fish
and Wildlife Service; 5275 Leesburg Pike, MS: IA; Falls Church, VA
22041 (telephone, (703) 358-2093).
SUPPLEMENTARY INFORMATION:
Applicable Laws
In the United States, the African elephant is primarily protected
and managed under the Endangered Species Act (ESA) (16 U.S.C. 1531 et
seq.); the Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES or Convention) (27 U.S.T. 1087), as
implemented in the United States through the ESA; and the African
Elephant Conservation Act (AfECA) (16 U.S.C. 4201 et seq.).
Endangered Species Act
Under the ESA, species may be listed either as ``threatened'' or as
``endangered.'' When a species is listed as endangered under the ESA,
certain actions are prohibited under section 9 (16 U.S.C. 1538), as
specified at 50 CFR 17.21. These include prohibitions on take within
the United States, within the territorial seas of the United States, or
upon the high seas; import; export; sale and offer for sale in
interstate or foreign commerce; and delivery, receipt, carrying,
transport, or shipment in interstate or foreign commerce in the course
of a commercial activity.
The ESA does not specify particular prohibitions and exceptions to
those
[[Page 45155]]
prohibitions for threatened species. Instead, under section 4(d) of the
ESA, the Secretary of the Interior is given the discretion to issue
such regulations as deemed necessary and advisable to provide for the
conservation of the species. The Secretary also has the discretion to
prohibit by regulation with respect to any threatened species any act
prohibited under section 9(a)(1) of the ESA for endangered species.
Exercising this discretion under section 4(d), the Service has
developed general prohibitions (50 CFR 17.31) and established a permit
process for specified exceptions to those prohibitions (50 CFR 17.32)
that apply to most threatened species. Permits issued under 50 CFR
17.32 must be for ``Scientific purposes, or the enhancement of
propagation or survival, or economic hardship, or zoological
exhibition, or educational purposes, or incidental taking, or special
purposes consistent with the purposes of the [ESA].''
Under section 4(d) of the ESA, the Service may also develop
specific prohibitions and exceptions tailored to the particular
conservation needs of a threatened species. In such cases, the Service
issues a 4(d) rule that may include some of the prohibitions and
authorizations set out at 50 CFR 17.31 and 17.32, but that also may be
more or less restrictive than the general provisions at 50 CFR 17.31
and 17.32.
Convention on International Trade in Endangered Species of Wild Fauna
and Flora
CITES entered into force in 1975, and is currently implemented by
180 countries (called Parties), including the United States. The aim of
CITES is to regulate international trade in listed animal and plant
species, including their parts and products, to ensure the trade is
legal and does not threaten the survival of species. CITES regulates
both commercial and noncommercial international trade through a system
of permits and certificates that must be presented when leaving and
entering a country with CITES specimens. Species are listed in one of
three appendices, which provide different levels of protection. In some
circumstances, different populations of a species are listed at
different levels. Appendix I includes species that are threatened with
extinction and are or may be affected by trade. The Convention states
that Appendix-I species must be subject to ``particularly strict
regulation'' and trade in specimens of these species should only be
authorized ``in exceptional circumstances.'' Appendix II includes
species that are not necessarily threatened with extinction now, but
may become so if international trade is not regulated. Appendix III
includes species that a range country has identified as being subject
to regulation within its jurisdiction and as needing cooperation of
other Parties in the control of international trade.
Import and export of CITES species is prohibited unless accompanied
by any required CITES documents. Documentation requirements vary
depending on the appendix in which the species or population is listed
and other factors. CITES documents cannot be issued until specific
biological and legal findings have been made. CITES does not regulate
take or domestic trade of listed species. It contributes to the
conservation of listed species by regulating international trade and,
in order to make the necessary findings, encouraging assessment and
analysis of the population status of species in trade and the effects
of international trade on wild populations to ensure that trade is
legal and does not threaten the survival of the species.
African Elephant Conservation Act
The AfECA was enacted in 1988, to ``perpetuate healthy populations
of African elephants'' by regulating the import and export of certain
African elephant ivory to and from the United States. Building from and
supporting existing programs under CITES, the AfECA called on the
Service to establish moratoria on the import of raw and worked ivory
from both African elephant range countries and intermediary countries
(those that export ivory that does not originate in that country) that
failed to meet certain statutory criteria. The statute also states that
it does not provide authority for the Service to establish a moratorium
that prohibits the import of sport-hunted trophies that meet certain
standards.
In addition to authorizing establishment of the moratoria and
prohibiting any import in violation of the terms of any moratorium, the
AfECA prohibits: The import of raw African elephant ivory from any
country that is not a range country; the import of raw or worked ivory
exported from a range country in violation of that country's laws or
applicable CITES programs; the import of worked ivory, other than
certain personal effects, unless the exporting country has determined
that the ivory was legally acquired; and the export of all raw (but not
worked) African elephant ivory. While the AfECA comprehensively
addresses the import of ivory into the United States, it does not
address other uses of ivory or African elephant specimens other than
ivory and sport-hunted trophies. The AfECA does not regulate the use of
ivory within the United States and, other than the prohibition on the
export of raw ivory, does not regulate export of ivory from the United
States. The AfECA also does not regulate the import or export of live
African elephants.
Regulatory Background
Ghana first listed the African elephant in CITES Appendix III on
February 26, 1976. Later that year, the CITES Parties agreed to add
African elephants to Appendix II, effective February 4, 1977. In
October 1989, all populations of African elephants were transferred
from CITES Appendix II to Appendix I (effective in January 1990), which
ended much of the previous legal commercial trade in African elephant
ivory.
In 1997, based on proposals submitted by Botswana, Namibia, and
Zimbabwe and the report of a Panel of Experts (which concluded, among
other things, that populations in these countries were stable or
increasing and that poaching pressure was low) the CITES Parties agreed
to transfer the African elephant populations in these three countries
to CITES Appendix II. The Appendix-II listing included an annotation
that allowed noncommercial export of hunting trophies, export of live
animals to appropriate and acceptable destinations, export of hides
from Zimbabwe, and noncommercial export of leather goods and some ivory
carvings from Zimbabwe. It also allowed for a one-time export of raw
ivory to Japan (which took place in 1999), once certain conditions had
been met. All other African elephant specimens from these three
countries were deemed to be specimens of a species listed in Appendix I
and regulated accordingly.
The population of South Africa was transferred from CITES Appendix
I to Appendix II in 2000, with an annotation that allowed trade in
hunting trophies for noncommercial purposes, trade in live animals for
reintroduction purposes, and trade in hides and leather goods. (At that
time, the Panel of Experts reviewing South Africa's proposal concluded,
among other things, that South Africa's elephant population was
increasing, that there were no apparent threats to the status of the
population, and that the country's anti-poaching measures were
``extremely effective.'') Since then, the CITES Parties have revised
the Appendix-II listing annotation three times. The current annotation,
in place since 2007, covers the Appendix-II populations of Botswana,
Namibia, South Africa, and Zimbabwe and allows export of: Sport-hunted
trophies for
[[Page 45156]]
noncommercial purposes; live animals to appropriate and acceptable
destinations; hides; hair; certain ivory carvings from Namibia and
Zimbabwe for noncommercial purposes; and a one-time export of specific
quantities of raw ivory, once certain conditions had been met (this
export, to China and Japan, took place in 2009). As in previous
versions of the annotation, all other African elephant specimens from
these four populations are deemed to be specimens of species included
in Appendix I and the trade in them is regulated accordingly.
The African elephant was listed as threatened under the ESA,
effective June 11, 1978 (43 FR 20499, May 12, 1978). A review of the
status of the species at that time showed that the African elephant was
declining in many parts of its range and that habitat loss, illegal
killing of elephants for their ivory, and inadequacy of existing
regulatory mechanisms were factors contributing to the decline. At the
same time the African elephant was designated as a threatened species,
the Service promulgated a 4(d) rule to regulate import and certain
interstate commerce of the species in the United States (43 FR 20499,
May 12, 1978).
The 1978 4(d) rule for the African elephant stated that the
prohibitions at 50 CFR 17.31 applied to any African elephant, alive or
dead, and to any part, product, or offspring thereof, with certain
exceptions. Specifically, under the 1978 rule, the prohibition at 50
CFR 17.31 against importation did not apply to African elephant
specimens that had originated in the wild in a country that was a Party
to CITES if they had been exported or re-exported in accordance with
Article IV of the Convention, and had remained in customs control in
any country not party to the Convention that they transited en route to
the United States. (At that time, the only African elephant range
States that were Parties to CITES were Botswana, Ghana, Niger, Nigeria,
Senegal, South Africa, and Zaire [now the Democratic Republic of the
Congo].) The 1978 rule allowed for a special purpose permit to be
issued in accordance with the provisions of 50 CFR 17.32 to authorize
any activity otherwise prohibited with regard to the African elephant,
upon submission of proof that the specimens were already in the United
States on June 11, 1978, or that the specimens were imported under the
exception described above.
The 4(d) rule has been amended twice in response to changes in the
status of African elephants and the illegal trade in elephant ivory,
and to more closely align U.S. requirements with actions taken by the
CITES Parties. On July 20, 1982, the Service amended the 4(d) rule for
the African elephant (47 FR 31384) to ease restrictions on domestic
activities and to more closely align its requirements with provisions
in CITES Resolution Conf. 3.12, Trade in African elephant ivory,
adopted by the CITES Parties at the third meeting of the Conference of
the Parties (CoP3, 1981). The 1982 rule applied only to import and
export of ivory (and not other elephant specimens) and eliminated the
prohibitions under the ESA against taking, possession of unlawfully
taken specimens, and certain activities for the purpose of engaging in
interstate and foreign commerce, including the sale and offer for sale
in interstate commerce of African elephant specimens. At that time, the
Service concluded that the restrictions on interstate commerce
contained in the 1978 rule were unnecessary and that the most effective
means of utilizing limited resources to control ivory trade was through
enforcement efforts focused on imports.
Following enactment of the AfECA (in October 1988), the Service
established, on December 27, 1988, a moratorium on the import into the
United States of African elephant ivory from countries that were not
parties to CITES (53 FR 52242). On February 24, 1989, the Service
established a second moratorium on all ivory imports into the United
States from Somalia (54 FR 8008). On June 9, 1989, the Service put in
place the current moratorium, which bans the import of ivory other than
sport-hunted trophies from both range and intermediary countries (54 FR
24758).
The 4(d) rule was revised on August 10, 1992 (57 FR 35473),
following establishment of the 1989 moratorium under the AfECA on the
import of African elephant ivory into the United States, and again on
June 26, 2014 (79 FR 30400, May 27, 2014), associated with the update
of U.S. CITES implementing regulations. In the 2014 revision of the
4(d) rule, we removed the CITES marking requirements for African
elephant sport-hunted trophies. At the same time, these marking
requirements were updated and incorporated into our CITES regulations
at 50 CFR 23.74. The purpose of this change was to make clear what is
required under CITES (at 50 CFR part 23) for trade in sport-hunted
trophies and what is required under the ESA (at 50 CFR part 17).
Need for Regulatory Actions
We have reevaluated the provisions of the 4(d) rule and considered
other administrative actions in response to unprecedented increases in
the illegal killing of elephants, an alarming growth in illegal trade
of elephant ivory, recommendations adopted by the CITES Parties in
March 2013 to help curb the illegal killing and illegal trade, issuance
of Executive Order 13648 on Combating Wildlife Trafficking in July
2013, and the stated priorities in the National Strategy for Combating
Wildlife Trafficking, issued by President Obama in February 2014.
Illegal Killing of Elephants and Illegal Ivory Trade
The increase in poaching of elephants and the escalation of the
illegal trade in ivory are described in documents made available at
CoP16. See, in particular, CoP16 Doc. 53.1, Monitoring the illegal
killing of elephants (including the Addendum); CoP16 Doc. 53.2.2,
Monitoring of illegal trade in ivory and other elephant specimens; and
Elephants in the Dust--the African Elephant Crisis, all available at
http://www.cites.org. Status of African elephant populations and levels
of illegal killing and the illegal trade in ivory: A report to the
African Elephant Summit, December 2013 (also available at http://www.cites.org) provides an update to information presented at CoP16. A
further update on the status of African elephants was prepared for the
65th meeting of the CITES Standing Committee (SC65), in July 2014, and
presented in Annex 1 to document SC65 Doc. 42.1, Elephant conservation,
illegal killing and ivory trade.
CoP16 Doc. 53.1 and its Addendum (prepared by the CITES
Secretariat), the December 2013 report for the African Elephant Summit
(prepared by the CITES Secretariat, the International Union for
Conservation of Nature (IUCN), and TRAFFIC, the Wildlife Trade
Monitoring Network), and Annex 1 to SC65 Doc. 42.1 (prepared by the
IUCN/Species Survival Commission Asian and African Elephant Specialists
Groups, the CITES Secretariat, the United Nations Environment
Programme's World Conservation Monitoring Centre (UNEP-WCMC), and
TRAFFIC) provide analyses of trends in levels of illegal killing of
elephants based on data from the CITES Monitoring the Illegal Killing
of Elephants (MIKE) program. MIKE is a site-based monitoring system
intended to measure levels and trends in the illegal killing of
elephants and to determine changes in these trends over time. Data are
collected by ranger patrols and others at established MIKE sites and
reported to the CITES Secretariat. The reports in CoP16 Doc. 53.1 and
its Addendum contain analyses of data collected between 2002
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and 2011, from more than 40 MIKE sites across Africa. The report
prepared for the African Elephant Summit in December 2013 contains an
updated MIKE analysis using 2012 data, and the report in the Annex to
SC65 Doc. 42.1 contains a further updated MIKE analysis using data
collected through 2013. The data set used for the most recent analysis
(in SC65 Doc. 42.1) consists of 12,073 records of elephant carcasses
found between 2002 and the end of 2013, at 53 MIKE sites in 29
countries across Africa.
MIKE data are used to evaluate relative poaching levels based on
the Proportion of Illegally Killed Elephants (PIKE), which is
calculated as the number of illegally killed elephants found divided by
the total number of elephant carcasses encountered by patrols or other
means, aggregated by year for each site. The data in these reports show
a steady increase in levels of illegal killing starting in 2006, with
2011 having the highest levels of poaching since MIKE records began in
2002. In 2012 and 2013, there appears to be a gradual decline, with
2013 levels close to those recorded in 2010. Despite the decline since
2011, poaching levels overall remain alarmingly high, with nearly two-
thirds of dead elephants found in 2013 deemed to have been illegally
killed. These reports state that the PIKE levels translate to 17,000
elephants killed at African MIKE sites in 2011, and 15,000 elephants
killed at African MIKE sites in 2012. These numbers were estimated
using models. The authors of the 2014 report prepared for SC65 note
that it was not possible to derive an estimate for 2013 using the same
method as in previous years because some of the required covariates for
2013 were not yet available. However, the authors provide a
``preliminary and rough calculation'' using a different method that
estimates more than 14,000 elephants were killed at MIKE sites in 2013.
The authors stress that this estimate must be treated with caution, but
they state that ``there are good reasons to believe that the number of
elephants illegally killed in Africa in 2013 ran, as in previous years,
into the tens of thousands, perhaps in the order of 20 to 22
thousand.''
A joint press release, issued by the CITES Secretariat, IUCN, and
TRAFFIC International on December 2, 2013, at the opening of the
African Elephant Summit in Gabarone, Botswana, asserted that the
figures for MIKE sites amount to an estimated 25,000 elephants killed
illegally across Africa in 2011, and 22,000 killed illegally in 2012.
Others have suggested that the numbers killed continent-wide are likely
even higher. The statistical model used to evaluate MIKE data estimates
that the ``threshold of sustainability'' at MIKE sites was crossed in
2010, with poaching rates remaining above the population growth rate of
4 to 5 percent for healthy elephant populations every year since.
A recent study, published in the Proceedings of the National
Academy of Sciences (in July 2014), reaffirmed these assertions.
Wittemyer et al. (2014) used MIKE data to analyze the impacts of
illegal killing on elephant populations across the African continent,
using two different approaches. The results demonstrate ``an over-
harvest driven decline in African elephants likely began in 2010.'' The
authors assumed an average annual population increase in the absence of
illegal killing of 4.2 percent. They estimated that illegal killing
rates averaged about 6.8 percent between 2010 and 2012, which the
authors estimate corresponds to more than 33,000 elephants killed per
year (based on current population estimates). They also noted that
preliminary data for 2013 suggest regional and continental levels were
slightly lower than for 2012, but still unsustainable.
CoP16 Doc. 53.2.2 and Annex 1 to SC65 Doc. 42.1 contain reports,
prepared by TRAFFIC, on data in the CITES Elephant Trade Information
System (ETIS). ETIS is a system for collecting and compiling law
enforcement data on seizures and confiscations in order to monitor the
pattern and scale of illegal trade in elephant specimens. TRAFFIC
receives seizure and confiscation data from CITES Parties, manages and
coordinates the ETIS system, and produces a comprehensive report for
meetings of the CoP and updates for meetings of the Standing Committee.
The report in CoP16 Doc. 53.2.2 covers the period 1996 through
2011, and the report in SC65 Doc. 42.1 covers the period 1996 through
2012 (data for 2013 were not yet complete when the report was
prepared). The data set used for the analysis presented in SC65 Doc.
42.1 includes 14,070 separate raw or worked ivory seizure records from
72 countries or territories during 1996-2012. Using 1998 as a baseline
(because it is the first full year after some populations of African
elephant were transferred from Appendix I to Appendix II and, at the
same time, the development of monitoring systems, including ETIS, was
mandated by the Parties), the reports examine trends in both the
frequency of illegal ivory trade transactions and the scale of the
illegal trade in ivory.
Illegal trade activity (frequency of transactions) remained at or
slightly above 1998 levels up to 2006. In 2006, a gradual increase in
activity began and grew with each successive year, with a ``major
surge'' in 2011. The authors report that the frequency of illegal ivory
trade transactions in 2011 represented ``a three-fold increase in
illegal trade activity since 1998.''
The scale of illegal trade was assessed by evaluating the weight of
ivory traded illegally. The authors caution that there is more
uncertainty in evaluating the weight of ivory in illegal trade than in
evaluating the frequency of illegal transactions, but the trend is
clear. Like the trend in frequency of transactions, there was relative
stability in the weight of ivory in illegal trade through 2007,
followed by a sharp increase in the following years. The authors
estimate that the quantity of illegal ivory in trade in 2011, measured
by weight, was nearly three times 1998 levels, and, although 2012 data
show a slight decrease compared to 2011, levels in 2012 represent a
value that is about two and a half times the 1998 levels. This upward
trend reflects a major increase in large consignments of ivory (over
100 kg) in illegal trade, which, the authors note, points to the
increasing involvement of international criminal syndicates. In its
2014 report to SC65, TRAFFIC states that the frequency of large-scale
ivory seizures has increased greatly since 2000, and that the ``upward
surge in the weight of ivory seized from 2009 through 2012 has been
primarily driven by increased seizures in the large ivory weight
class.'' Although 2013 data were not complete when the report was
written and, therefore, were not included in the analysis, the authors
note that the 18 seizures made in 2013 for which they had data
``collectively constitute the greatest quantity of ivory derived from
large-scale seizure events going back to 1989.''
Elephants in the Dust--the African Elephant Crisis is a report
commissioned by the CITES Secretariat through its MIKE program and
prepared by UNEP, the CITES Secretariat, IUCN, and TRAFFIC for
presentation at CoP16. This report highlights the long-term threats to
African elephants posed by habitat loss due to human population growth
and large-scale conversion of land for agriculture. It also raises
alarm at the added impact of the increasing poaching levels on elephant
populations, not only in central Africa but also in previously secure
areas of east, west, and southern Africa. Both the TRAFFIC report to
CoP16 and Elephants in the Dust conclude that elephants are
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facing the most serious conservation crisis since 1989, when the
African elephant was transferred from CITES Appendix II to Appendix I.
The poaching of African elephants to supply international demand for
ivory has reached unprecedented levels, and opportunistic poaching has
been replaced by coordinated slaughter commissioned by organized
networks or syndicates.
The CITES Parties have taken steps to address the growing illegal
trade in ivory, including, at CoP16, calling on countries to ensure
that they have comprehensive measures in place to regulate the domestic
trade in raw and worked ivory. At SC65, the Standing Committee took
steps to hold countries that have been identified as being
significantly involved in illegal ivory trade (either as source,
transit, or destination countries for illegal ivory) accountable.
Identified countries that fail to take actions to resolve problems by
the agreed deadlines may be subject to CITES trade sanctions.
U.S. Involvement in the Illegal Ivory Trade
Demand for ivory is driving the current poaching crisis. Although
the primary markets are in Asia, particularly in China and Thailand,
the United States continues to play a role as a destination and transit
country for illegally traded elephant ivory. Service wildlife
inspectors stationed at major U.S. ports intercept smuggled wildlife
and ensure that wildlife importers and exporters comply with
declaration, permit, and other requirements for international trade in
elephants and other wildlife species. Over the years, seizures of
unlawfully imported and exported elephant specimens at U.S. ports have
ranged from whole elephant tusks and large ivory carvings to knife
handles, jewelry made from ivory or hair, and tourist souvenirs
including items made from elephant feet and bones. The Service provides
seizure data to TRAFFIC annually for inclusion in the CITES ETIS
database. Since 1990, the annual number of seizure cases involving
elephant specimens at U.S. ports has ranged from over 450 (in 1990) to
60 (in 2008); in most other years the number falls between 75 and 250
cases. In 2012, the most recent year for which we have complete data,
there were about 225 seizure cases involving elephant specimens, which
resulted in seizure of over 1,500 items that contained or consisted of
elephant parts or products. Nearly 1,000 of those items contained or
consisted of elephant ivory. (About 300 of the items were elephant
hairs.)
Service special agents have investigated multiple smuggling
operations involving the trafficking of elephant ivory for U.S.
markets. Some examples of major investigations are provided here. In
September 2012, the owner of a Philadelphia African art store was
arrested and pleaded guilty to smuggling African elephant ivory into
the United States. Approximately one ton of elephant ivory was seized
from his store; it was the largest ivory seizure in U.S. history.
According to the indictment, the art store owner paid a co-conspirator
to travel to Africa to purchase raw elephant ivory and have it carved
to his specifications and stained or dyed so that the carvings would
appear old. He sold the carvings at his store in Philadelphia and
elsewhere in the United States as ``antiques.''
The arrest in Philadelphia was an outgrowth of a multi-year
investigation that documented over 20 shipments of newly carved
elephant ivory smuggled into the United States in air and ocean cargo
from Cameroon, Ivory Coast, Nigeria, and Uganda. The smuggled ivory
came into the country through New Jersey and New York, and was
distributed to collectors and retailers across the United States,
including to Chicago, Houston, Memphis, New York City, Philadelphia,
and Trenton. A total of 10 individuals were charged and later convicted
as part of this investigation. Much of the ivory in this case was sent
via parcel accompanied by fraudulent shipping and customs documents,
and disguised with clay and other substances to look like musical
instruments and wooden statues.
Service investigators teamed with officers from the New York
Department of Environmental Conservation to probe illegal ivory sales
by a New York City jeweler distributor and two Manhattan retailers.
This investigation documented a booming and unauthorized trade in
ivory. Prosecutions were pursued by the Attorney General for the State
of New York based on violations of State laws regulating the sale of
elephant ivory. The stores prosecuted paid $50,000 in fines and
forfeited over one ton of elephant ivory (which was destroyed at the
Service's ``ivory crush'' described below). The distributor forfeited
70 pounds of elephant ivory valued at $30,000 and paid $10,000 in
restitution.
Service special agents worked with the Thai Royal Police to secure
the 2010 U.S. indictment of two businessmen (the owner of a Los Angeles
area donut shop and a Thai trafficker) and four arrests in Thailand in
a case that exposed transcontinental trafficking in elephant ivory.
Over the course of this 5-year undercover investigation, officers
showed that ivory was being smuggled from Africa into Thailand by Thai
operatives who then sold it to clients in the United States and other
countries. The investigation began in 2006, when Service wildlife
inspectors conducting an inspection ``blitz'' at the international mail
facility in Los Angeles intercepted a package of elephant ivory that
had been mailed from Thailand to a U.S. business and labeled as toys.
The U.S. defendant pleaded guilty to Federal charges.
Operation Scratchoff was a multi-year investigation, launched by
the Service in New York in 2006. It documented and disrupted the
illegal activities of both international smugglers who were bringing
ivory into the country from Africa and U.S. retailers involved in this
black market trade. Special agents documented smuggled ivory entering
the United States from Cameroon, Gabon, Ghana, Ivory Coast, Kenya,
Nigeria, and Uganda. Most of the ivory smuggled by defendants in this
case was shipped from Africa via mail parcel through John F. Kennedy
International Airport. The shipments were accompanied by fraudulent
shipping and customs documents identifying their contents as African
wooden handicrafts or wooden statues. The ivory itself was painted to
look like wood; covered with clay; or hidden inside wooden handicrafts,
such as traditional African musical instruments. Work on this
investigation resulted in the arrest and conviction of eight
individuals in the United States on felony smuggling and/or Lacey Act
(16 U.S.C. 3371 et seq.) charges with final sentencing in 2010 and
2011. Prison terms for five of these defendants, which included a 33-
month sentence for one, totaled more than 7 years. Operation Scratchoff
also led to the arrest in January 2010 of an ivory supplier in Uganda
by Ugandan authorities, and the identification of additional ivory
trafficking suspects.
In 2008, a Canadian citizen was sentenced to 5 years in prison and
ordered to pay a $100,000 fine for illegally smuggling ivory from
Cameroon into the United States for sale here. The perpetrator operated
art import and export businesses in Montreal, Canada and in Cameroon
that were fronts for smuggling products made from protected wildlife
species, including raw elephant ivory. She ran a sophisticated
smuggling operation that utilized local artists and craftsmen in
Cameroon, operatives within international shipping companies, contacts
in the illegal ivory trade, her business in Canada, and partners in
three countries. Two of her shipments,
[[Page 45159]]
sent to Ohio, included fresh ivory from more than 20 recently killed
elephants.
In 2006, Service special agents secured a 20-count criminal
indictment against Primitive Art Works, a Chicago art gallery
specializing in high-end exotic artifacts from around the world, and
its two owners for smuggling elephant ivory and products made from
other protected species into the United States. The Service seized over
1,000 ivory carvings and tusks from the defendants, who were asking as
much as $50,000 a piece for these items. Both owners pleaded guilty to
wildlife violations later that year.
In 2001, during Operation Loxa, Service officers in Los Angeles
intercepted more than 250 pounds of smuggled African elephant ivory,
the largest ivory seizure ever on the west coast of the United States.
The two shipments, which were smuggled from Nigeria, were declared to
customs as handcrafted furniture. The ivory included whole tusks and
pieces hidden inside furniture and concealed in beaded cloth. Four
individuals were arrested and indicted for conspiracy to smuggle
elephant ivory into the United States. Three of them were convicted.
Service special agents have also investigated cases involving
smuggling of elephant ivory out of the United States to other markets,
particularly in Asia. In an investigation, known as Operation Crash, an
Asian antique dealer was convicted for his role in the conspiracy to
smuggle items made from elephant ivory and rhinoceros horn valued at
over $1,000,000. The investigation revealed that this individual worked
in the United States as a buyer for four different Asian dealers, who
were purchasing numerous ivory carvings from auction houses in the
United States. After purchasing the ivory at auctions, the antique
dealer smuggled the ivory (through the mail) to various locations in
Hong Kong, using false declarations to avoid export controls.
In 2011, a Chinese national was intercepted at John F. Kennedy
International Airport prior to boarding a plane to Shanghai, China.
Service investigators found 18 elephant ivory carvings concealed in his
luggage. This individual was an Asian art dealer who purchased the
carvings at various U.S. auction houses during a week-long buying trip.
Upon arrest, he told agents that he wrapped the ivory carvings in tin
foil to avoid x-ray detection.
At auctions in the United States, Service law enforcement officers
have documented foreign buyers placing absentee bids on wildlife items,
including those made from African elephant ivory. In some cases, the
ivory items are smuggled directly to the foreign buyers. In many
instances, however, the foreign buyers employ couriers with residences
in the United States to collect the elephant ivory and smuggle it
overseas on their behalf. We are concerned that foreign ivory buyers
and couriers view the United States as a significant source and market
for elephant ivory.
In November 2013, the Service destroyed nearly six tons of
contraband African and Asian elephant ivory that had been either seized
at U.S. ports or as part of law enforcement investigations over the
past 25 years for violation of wildlife laws. We crushed this
contraband ivory, which had been stored at the Service's National
Wildlife Property Repository, to raise public awareness about the
current African elephant poaching crisis and to send a clear message
that the United States will not tolerate ivory trafficking and the toll
it is taking on wild elephant populations. The six tons of ivory
crushed in 2013 underscores the continuing U.S. role in the illegal
market and the need for us to take further actions to curtail that
role.
There is also a legal market for ivory within the United States. We
do not have comprehensive information on the U.S. domestic ivory
market. Tackling the Ivories, a 2004 report by Douglas Williamson for
TRAFFIC North America, described the status of U.S. trade in elephant
and hippopotamus ivory. At that time, the author noted that ``as one of
the world's largest markets for wildlife products, the [United States]
has long played a significant role in the international ivory trade.''
He concluded that the ivory trade within the United States was not
closely monitored and that its full extent was unknown. In addition to
ivory available from retail outlets, he noted that there was
``significant trade conducted via the internet, with little
oversight.'' The domestic trade involved both raw and worked ivory.
Worked ivory was readily available in the form of carvings, jewelry,
piano keys, and other items. Raw ivory was bought by companies and
individuals to be fashioned into specialty items including knife
handles, gun grips, and pool cues. Along with legal trade, Williamson
found evidence of illegal trade, including internet sellers in China
that routinely shipped ivory to the United States, via express delivery
service, and offered to falsely label the shipments as ``bone
carvings.''
In a 2006-2007 survey of selected metropolitan areas across the
United States, Martin and Stiles (2008) identified retail
establishments trading in worked ivory, including ivory from African
elephants. In each area surveyed, the surveyors visited major flea
markets, antique markets, main shopping areas for antiques and crafts,
department stores, and luxury hotel gift shops. The study does not
identify all establishments trading in ivory, but gives a general idea
of the number of establishments and geographic scope. In the 16 areas
surveyed, the authors identified a total of 652 retail outlets offering
a total of more than 23,000 ivory products for sale. Of the areas
surveyed, those with the most retail outlets and the greatest number of
ivory products for sale were: New York City (124 retail outlets
containing a total of 11,376 ivory products); San Francisco Bay area
(40 retail outlets containing a total of 2,777 ivory products); and
greater Los Angeles (170 retail outlets containing a total of 2,605
ivory products). Martin and Stiles estimated that as much as one-third
of the items they found were imported illegally after the 1989 AfECA
import moratorium.
In March and April of 2014, one of the authors of the 2008 study
conducted a follow-up survey (Stiles 2015) in Los Angeles and San
Francisco, California. He found a total of more than 1,250 ivory items
offered for sale by 107 vendors in these two California cities, ``with
777 items and 77 vendors in Los Angeles and well over 473 ivory items
and 30 vendors in San Francisco.'' While there were ``significantly
fewer venders'' offering ivory for sale, compared to the 2006-2007
survey, Stiles noted ``a much higher incidence of what appears to be
ivory of recent manufacture in California, roughly doubling from
approximately 25% in 2006 to about half in 2014. In addition, many of
the ivory items seen for sale in California advertised as antiques
(i.e., more than 100 years old) appear to be more likely from recently
killed elephants.''
Basis for Regulatory Changes and Necessary and Advisable Determination
It is often impossible to distinguish ivory legally imported into
the United States from that which has been smuggled into the country,
which significantly undermines enforcement efforts and provides an
opportunity for illegal ivory to be laundered through U.S. markets. In
addition, U.S. citizens may be involved in the global ivory market with
ivory that has never been imported into the United States. The Service
has reevaluated our domestic controls, given the current poaching
crisis in Africa and the associated increase in illegal trade in ivory,
the
[[Page 45160]]
recent CITES recommendations, and evidence that substantial quantities
of illegal ivory are making their way into U.S. markets. We have
determined that it is appropriate to take certain regulatory actions,
including revision of the 4(d) rule as necessary and advisable for the
conservation of the species and to include certain prohibitions from
section 9(a)(1) of the ESA, to more strictly regulate U.S. trade in
ivory. The proposed revisions would regulate import, export, and
commercial use of African elephant ivory and sport-hunted trophies and
appropriately protect live elephants within the United States, while
including certain limited exceptions for items and activities that we
do not believe, based on all available evidence, are contributing to
the poaching of elephants in Africa, including trade in live animals,
parts and products other than ivory, and certain manufactured items
containing ivory that meet specific criteria.
These new restrictions would facilitate enforcement efforts within
the United States and improve regulation of both domestic and foreign
trade in elephant ivory by U.S. citizens. Improved domestic controls
will make it more difficult to launder illegal elephant ivory through
U.S. markets, which will contribute to a reduction in poaching of
African elephants.
This proposed action is consistent with Executive Order 13648 on
Combating Wildlife Trafficking signed by President Obama on July 1,
2013, to ``address the significant effects of wildlife trafficking on
the national interests of the United States.'' The Executive Order
calls on executive departments and agencies to take all appropriate
actions within their authority to ``enhance domestic efforts to combat
wildlife trafficking, to assist foreign nations in building capacity to
combat wildlife trafficking, and to assist in combating transnational
organized crime.'' Increased control of the U.S. market for elephant
ivory is also among the administrative actions called for in the
National Strategy for Combating Wildlife Trafficking, issued by
President Obama on February 11, 2014. Director's Order No. 210, issued
by the Director of the U.S. Fish and Wildlife Service, established
policy and procedures for the Service to follow in implementing the
National Strategy with regard to trade in African elephant ivory and
parts and products of other ESA-listed species.
This proposal is also in line with international efforts. At CoP16,
in March 2013, the CITES Parties adopted a revised resolution on trade
in elephant specimens (Resolution Conf. 10.10 (Rev. CoP16)), which,
among other things, urges Parties with a legal domestic ivory market to
ensure that they have in place ``comprehensive internal legislative,
regulatory, enforcement and other measures to regulate the domestic
trade in raw and worked ivory.'' Wittemyer et al. (2014) concluded that
it is obvious that stemming the rate of illegal killing of elephants is
paramount. They call for a global response, including heavy in situ
conservation efforts, enforcement of end-use markets, and curbing
demand to reduce black market prices for ivory and ``alleviate the
unsustainable pressure from illegal killing on wild populations.''
In developing this proposed rule, we have also considered the
provisions already in place for protection of African elephants under
CITES, the AfECA, and the guidance provided in Director's Order No.
210. Provisions for African elephants under CITES and the AfECA can
help to address current threats to the species, but the ESA can reach
activities that are not regulated under these other laws. For each type
of activity and specimen, the available protections provided through
the combination of all applicable laws are analyzed to explain why the
overall proposed regulatory framework is appropriate for the
conservation of this species.
General Provisions
We are proposing to revise the 4(d) rule for the African elephant,
in 50 CFR 17.40(e), so that all of the provisions at 50 CFR 17.31 and
17.32 would apply unless specifically indicated otherwise in the rule.
Any activity that would be prohibited or exempted under 50 CFR 17.31
and any activity that would require authorization under 50 CFR 17.32
would be regulated as indicated in those sections except as provided in
this proposed rule. This legal framework provides far greater
protections for African elephants compared to the current rule, which
regulates only certain import to and export from the United States;
possession, sale, offer for sale, transport, and similar activities
with any African elephant specimen illegally imported into the United
States; and sale or offer for sale of any sport-hunted trophy imported
into the United States in violation of a permit condition. The
protections that would be offered to African elephants through this
proposed rule and reasons each of the measures is appropriate for the
conservation of the species are explained below.
Nothing in this rule would affect other legal requirements
applicable to African elephants and their parts and products under
other laws such as the AfECA and CITES. For example, while an import
into the United States that met all standards as a noncommercial
transshipment under section 10(i) of the ESA would not be a violation
of the ESA, it would remain a violation of the import moratorium under
the AfECA. In addition, any person importing or exporting African
elephants or their parts and products to or from the United States
would need to comply with all applicable CITES requirements beyond what
are described in this proposed rule, as well as the general wildlife
import/export requirements found at 50 CFR part 14 and general
permitting requirements in 50 CFR part 13. These additional
requirements, when applicable, are noted in the text of the rule.
Take of Live Elephants
The current 4(d) rule does not regulate the taking of live African
elephants. Take means to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or attempt to engage in any such
conduct, an ESA-protected species and therefore includes both lethal
and certain non-lethal effects on protected wildlife. Under the
proposed rule, the taking of any live African elephant would be
prohibited within the United States, within the U.S. territorial sea,
or upon the high seas (with the latter two acts possibly occurring
during transport of a live elephant, such as during transport to or
from the United States). Take of endangered or threatened species is
not regulated under the ESA beyond these geographic areas, so this
change to the 4(d) rule would not have any effect on the ability of
U.S. citizens to travel to countries that allow hunting of African
elephants and engage in sport hunting. However, the import of any
associated sport-hunted trophy into the United States would be
regulated as described below. For any African elephant held in
captivity within the United States, take would not include animal
husbandry practices that meet minimum standards under the Animal
Welfare Act (AWA; 7 U.S.C. 2131 et seq.), breeding procedures, and
veterinary care that is not likely to result in injury to the elephant.
(See the definition of ``harass'' at 50 CFR 17.3.) Therefore this new
restriction would not affect routine procedures for care of African
elephants that are held in zoos and similar facilities in the United
States. This prohibition is the same as the prohibition on take of
Asian elephants, which has been in place since the Asian elephant was
listed under the ESA in 1976.
[[Page 45161]]
The proposed rule would help to ensure that elephants held in
captivity receive an appropriate standard of care. Any activities that
qualify as take, including those beyond the standard veterinary care,
breeding procedures, and AWA care standards described in the definition
of ``harass,'' would have to qualify for one of the purposes that allow
for issuance of a threatened species permit under 50 CFR 17.32. While
the taking of live African elephants held in captivity within the
United States or being transported is not a threat to the species,
including a prohibition against take, even for species that are not
native to the United States, is a standard protection for threatened
species and ensures an adequate level of care for wildlife held in
captivity.
Interstate and Foreign Commerce
The current 4(d) rule for the African elephant does not regulate
sale or offer for sale in interstate or foreign commerce or delivery,
receipt, carrying, transport, or shipment in interstate or foreign
commerce in the course of a commercial activity of African elephants
(including live animals, parts and products, and sport-hunted
trophies). The only commercial activities regulated under the current
4(d) rule are possession, sale or offer for sale, and receipt,
delivery, transport, or shipment of African elephants (including parts
and products) that were illegally imported into the United States and
sale or offer for sale of any sport-hunted trophy imported into the
United States in violation of a permit condition. These restrictions
will remain in place through the ESA section 9(c)(1) prohibition on
possession of any CITES specimen that was imported or exported contrary
to the Convention, prohibitions under the Lacey Act (16 U.S.C. 3371 et
seq.), and ESA section 11 penalties for violations of ESA or CITES
permit conditions. We propose to allow continued sale or offer for sale
in interstate or foreign commerce and delivery, receipt, carrying,
transport, or shipment in interstate or foreign commerce in the course
of a commercial activity of live animals and African elephant parts and
products other than ivory and sport-hunted trophies without a
threatened species permit.
The poaching crisis is driven by demand for elephant ivory. There
is no information to indicate that commercial activities involving live
elephants or commercial use of elephant parts and products other than
ivory has had any effect on the rates or patterns of illegal killing of
elephants and the illegal trade in ivory. Live animals are occasionally
removed from the wild and placed in captivity, often from populations
in small management areas where there have been local over-population
issues and consequent negative impacts to habitat. African elephant
parts other than ivory (such as hides) that are commercialized
generally become available when animals are culled for management
purposes, during salvage of animals poached for their ivory, or when
problem animals have to be killed. African elephants are not killed
primarily for their hides or for parts other than ivory. In addition,
the import and export of live African elephants and parts and products
are regulated under CITES and other U.S. law. This includes import into
and export from the United States for both commercial and noncommercial
purposes. It is only commercial activity associated with interstate or
foreign commerce not involving import or export that would not be
regulated. We have no information indicating that such commercial
activity is having any effect on the conservation status of African
elephants. Requiring individuals to obtain a threatened species permit
under 50 CFR 17.32 when the removal of a small number of live elephants
or the incidental harvest of their hides or hair has no negative impact
on the species would provide no meaningful protective measures for
African elephants, especially when activities that also involve import
or export to or from the United States are already regulated under
CITES. For these reasons, we have determined that it is not necessary
to propose restrictions on commercial activities in interstate or
foreign commerce with live African elephants, leather goods, and other
African elephant non-ivory parts and products.
We do, however, propose to prohibit sale or offer for sale of ivory
in interstate or foreign commerce and delivery, receipt, carrying,
transport, or shipment of ivory in interstate or foreign commerce in
the course of a commercial activity, with some exceptions, and to
prohibit the same commercial activities with sport-hunted African
elephant trophies. ``Foreign commerce'' is defined in section 3 the ESA
(16 U.S.C. 1532(9)). ``Commercial activity'' as used in the term ``in
the course of a commercial activity'' is also defined in section 3 the
ESA and means ``all activities of industry and trade, including, but
not limited to, the buying or selling of commodities and activities
conducted for the purpose of facilitating such buying and selling'' (16
U.S.C. 1532(2)). The Service has defined ``industry or trade'' at 50
CFR 17.3 to mean ``the actual or intended transfer of wildlife . . .
from one person to another person in the pursuit of gain or profit.''
The ESA definition of ``commercial activity'' includes an exception for
``exhibitions of commodities by museums or similar cultural or
historical organizations.'' ``Person'' is defined in the ESA to include
corporations, partnerships, trusts, associations, or any other private
entity along with Federal, State, local, and foreign governments, as
well as individuals. Activities that would be prohibited could be
authorized through a threatened species permit under 50 CFR 17.32 for
scientific purposes, enhancement of propagation or survival of the
species, zoological exhibition, educational purposes, or other special
purposes consistent with the purposes of the ESA. The ESA does not
reach sale or offer for sale or activities in the course of a
commercial activity that occur solely within the boundaries of a State
(i.e., intrastate commerce).
There are a number of potential activities involving ivory or
sport-hunted trophies that would not be prohibited under these ESA
standards, provided the activity did not qualify as ``sale'' or ``offer
for sale.'' Under our definition of ``industry or trade,'' commercial
use of threatened specimens does not fall under the prohibition for
``commercial activity'' unless the transaction involves the transfer of
the specimen from one person to another person in the pursuit of gain
or profit. Activities that would involve the movement of ivory or
sport-hunted trophies in interstate or foreign commerce for gain or
profit where there would be no transfer of the item to another person
would not be a violation of this rule. For example, a person who
transported an item containing ivory across State lines for the purpose
of having the item repaired would not fall under the prohibition for
``commercial activity.'' Not every transaction that involves the
exchange of money qualifies as commercial activity under the ESA. In
this case, the repair person would gain financially and the item may
increase in value once repaired, but the payment of money would be to
compensate the repair person for his or her labor and expenses and not
involve gain or profit from the ivory item itself (unless the activity
involved using additional ivory to repair the item, which would not be
allowed). The donation of an item consisting of or containing ivory
also would not be considered commercial activity, even if the donor
qualified for a tax benefit
[[Page 45162]]
where the tax benefit is not income. Exhibitions of ivory items or
sport-hunted trophies involving gain or profit would remain exempt
under the ESA definition of ``commercial activity,'' provided that all
entities involved in the transaction qualified as ``museums or similar
cultural or historical organizations.'' Finally, the exemption
available through section 10(h) of the ESA (16 U.S.C. 1539(h)) would
continue to allow commercialization of qualifying antiques in
interstate and foreign commerce. There are, however, other Federal and
State restrictions that may apply to commercial activities involving
ivory, including ``use after import'' restrictions on certain specimens
that have been imported under CITES (see below).
As explained in the section Need for Regulatory Actions, while
there has long been poaching of African elephants for their ivory and
illegal trade in that ivory, since 2006, there has been an
unprecedented increase in the illegal killing of African elephants,
with estimates exceeding 20,000 per year in recent years. Concurrent
with this increase in illegal killing there has been an alarming
increase in illegal trade in ivory. Recent law enforcement efforts have
demonstrated that the United States plays a role in the illegal trade
and the associated illegal killing. The study by Martin and Stiles
(2008) estimated that as much as one-third of the ivory found in
selected metropolitan areas had been imported into the United States
illegally since the 1989 AfECA moratorium. Stiles estimated, in his
2014 follow-up study, that as much as one half of the ivory for sale in
two California cities during his survey had been imported illegally.
All of this demonstrates the need to impose restrictions on
commercializing elephant ivory within the United States. The proposed
rule would restrict commercial activities with African elephant ivory
consistent with the restrictions in place for endangered species and
those in place for other threatened species, with a narrow exception
for manufactured items containing a small (de minimis) quantity of
ivory. Sale or offer for sale of ivory in interstate or foreign
commerce and delivery, receipt, carrying, transport, or shipment of
ivory in interstate or foreign commerce in the course of a commercial
activity would also remain available by threatened species permit under
50 CFR 17.32, provided the person met all of the requirements of that
section as well as the general permitting requirements under 50 CFR
part 13.
For the same reasons that it is appropriate for the conservation of
African elephants to restrict commercial activities involving ivory in
interstate and foreign commerce, it is appropriate to restrict
commercial activities involving sport-hunted trophies in interstate and
foreign commerce. African elephant trophies contain raw or worked
ivory, and in fact sometimes only the raw or worked ivory from the
animal is imported into the United States as the trophy. Sport hunting
is considered a noncommercial activity and CITES regulation of import
and export of sport-hunted trophies reflects this approach. For
example, the listing of the African elephant in CITES Appendix II for
Botswana, Namibia, South Africa, and Zimbabwe is specifically annotated
to note that trade in hunting trophies is for noncommercial purposes
only. In Resolution Conf. 12.3 (Rev. CoP16), the CITES Parties have
specified that a hunting trophy is an animal that was taken for the
hunter's personal use. In addition, a CITES import permit for an
African elephant trophy hunted in an Appendix I country can only be
issued if the importing government finds that the specimen is not to be
used for primarily commercial purposes. Reflecting these restrictions,
CITES permits for African elephant sport-hunted trophies include a
permit condition that the specimen can be used for noncommercial
purposes only.
Consistent with these and similar restrictions for other CITES
species, in the 2007 revisions to our CITES-implementing regulations,
we clarified that in situations where commercial import would be
prohibited under CITES, an item imported for noncommercial purposes
could not be used for commercial purposes after import into the United
States. Under our CITES regulations, Appendix-I specimens (except those
imported under a CITES exemption document or before the species was
listed in Appendix I), CITES Appendix-II specimens with an annotation
that trade is for noncommercial purposes only, and CITES Appendix-II
specimens without a noncommercial annotation but listed as threatened
under the ESA can only be used within the United States for
noncommercial purposes (see 50 CFR 23.55). This restriction under the
authority of CITES reaches intrastate as well as interstate and foreign
commerce. We propose to prohibit the commercialization of sport-hunted
African elephant trophies in a manner consistent with other legal
standards under CITES, including the commercialization of any
manufactured items that might otherwise qualify under the de minimis
exception discussed below.
Since announcing our intentions to remove or revise the 4(d) rule,
we have received input from the public, including musicians and musical
instrument manufacturers, museums, antique dealers, and others who may
be impacted by these proposed changes. Having considered relevant
information provided by these groups, in this proposed rule we would
allow for continued commercialization of African elephant ivory in
interstate and foreign commerce that is not contributing to the
poaching of elephants and where we believe the risk of illegal trade is
low.
We propose to allow sale and offer for sale of ivory in interstate
or foreign commerce along with delivery, receipt, carrying, transport,
or shipment of ivory in interstate or foreign commerce in the course of
a commercial activity without a threatened species permit for
manufactured items containing de minimis amounts of ivory, provided
they meet the following criteria:
For items located in the United States, the ivory was
imported into the United States prior to January 18, 1990 (the date the
African elephant was listed in CITES Appendix I) or was imported into
the United States under a CITES pre-Convention certificate with no
limitation on its commercial use;
For items located outside the United States, the ivory is
pre-Convention (removed from the wild prior to February 26, 1976 (the
date the African elephant was first listed under CITES));
The ivory is a fixed component or components of a larger
manufactured item and is not, in its current form, the primary source
of value of the item;
The manufactured item is not made wholly or primarily of
ivory;
The total weight of the ivory component or components is
less than 200 grams;
The ivory is not raw; and
The item was manufactured before the effective date of the
final rule for this action.
We have included the phrase ``in its current form'' in the
criterion stating that the ivory is not the primary source of value of
the item, to make clear that we would consider the value added by the
craftsmanship (carving, etc.) that went into the ivory component, not
just the value of the ivory itself. We use the phrase ``wholly or
primarily'' (in the next criterion) as those terms are commonly defined
in the dictionary. We consider ``wholly'' to mean ``entirely, totally,
altogether'' and ``primarily'' to mean ``essentially, mostly, chiefly,
principally.'' We have chosen 200 grams
[[Page 45163]]
as the weight limit because we understand that this is the approximate
maximum weight of the ivory veneer on a piano with a full set of ivory
keys and that this quantity would also cover most other musical
instruments with ivory trim or appointments. We also understand the
200-gram limit would cover a broad range of decorative and utilitarian
objects containing small amounts of ivory (insulators on old tea pots,
decorative trim on baskets, and knife handles, for example).
We have intentionally crafted this exception to allow commercial
activity in a very narrow class of items. While we have given careful
consideration to the types of items containing African elephant ivory
for which we could allow continued commercialization in interstate and
foreign commerce (because we do not believe the trade is contributing
to the poaching of elephants and we believe the risk of illegal trade
is low) we seek comment from the public on the specific criteria we
have proposed to qualify for this de minimis exception. In particular,
we are interested in input on criterion (iii), the ivory is a fixed
component or components of a larger manufactured item and is not in its
current form the primary source of value of the item and criterion (v),
the manufactured item is not made wholly or primarily of ivory. We seek
comment on the impact of not including these criteria in the rule and
whether these criteria are clearly understandable.
Examples of items that we do not expect would qualify for the de
minimis exception include chess sets with ivory chess pieces (both
because we would not consider the pieces to be fixed components of a
larger manufactured item and because the ivory would likely be the
primary source of value of the chess set), an ivory carving on a wooden
base (both because it would likely be primarily made of ivory and the
ivory would likely be the primary source of its value), and ivory
earrings or a pendant with metal fittings (again both because they
would likely be primarily made of ivory and the ivory would likely be
the primary source of its value). For the reasons discussed in the
section Import and export of ivory, other than sport-hunted trophies,
this de minimis exception would not apply to manufactured items
containing ivory that were imported to or exported from the United
States for law enforcement or scientific purposes or to otherwise
qualifying inherited items or items in a household move that were
imported or exported under one of the exceptions in this rule.
Our law enforcement experience over the last 25 years (see the U.S.
involvement in the illegal ivory trade section) has shown that the vast
majority of items in the illegal ivory trade are either raw ivory
(tusks and pieces of tusks) or manufactured pieces (mostly carvings)
that are composed entirely or primarily of ivory. As described earlier,
in November 2013, the Service destroyed six tons of seized ivory that
represented over 25 years of law enforcement efforts to control illegal
ivory trade in the United States. The six tons of contraband ivory did
not include any items that would be covered by this exception. As
demonstrated by the thousands of seized ivory items destroyed in the
``crush,'' ivory traffickers are not manufacturing items with small
amounts of pre-Convention ivory or dealing in such items. Rather,
because the incentive to deal in illegal ivory is economic, the trade
focuses on raw ivory and large pieces of carved ivory from which the
highest profits can be made. Likewise, in the case described earlier
involving the Philadelphia African art dealer, which included the
seizure of approximately one ton of ivory, all of the seized ivory was
in the form of whole ivory carvings and did not include any items that
would qualify under the proposed de minimis exception.
The information we have about the domestic market, including the
surveys conducted by Martin and Stiles and our own investigations,
indicates that trade in the types of manufactured items that would
qualify for this proposed de minimis exception is not contributing to
or driving the illegal ivory trade. Martin and Stiles identify recently
made and presumably illegally imported items as figurines, netsukes,
and jewelry, none of which would qualify under the criteria proposed
for a de minimis exception.
The requirement that the ivory is either pre-Convention (removed
from the wild prior to February 26, 1976) or was imported into the
United States prior to 1990, and the requirement that the item must
have been manufactured before the effective date of a final rule would
make it unlikely that commercialization of ivory under this exception
would directly contribute to the future illegal killing of elephants.
Noting the types of items that make up the illegal trade, and requiring
that the ivory be a fixed component of a larger manufactured item, that
the ivory is not raw, that it is not the primary source of value of the
item, that the total weight of the ivory is less than 200 grams, and
that the manufactured item is not made wholly or primarily of ivory
would minimize the possibility of the ivory contributing to either
global or U.S. illegal ivory markets or that the de minimis exception
could be exploited as a cover for the illegal trade.
These changes will allow us to appropriately regulate the U.S.
domestic market in ivory as well as U.S. participation in global
markets for ivory and achieve our goal of conserving the African
elephant, while allowing limited continued trade that is not
contributing to the poaching of elephants. Improved domestic controls
will make it more difficult to launder illegal elephant ivory through
U.S. markets, which we believe will ultimately contribute to a
reduction in the illegal killing of African elephants.
Since announcing our intention to revise the 4(d) rule for the
African elephant and prohibit sale and offer for sale of African
elephant ivory in interstate commerce, we have heard from a number of
representatives of the U.S. museum community. They have expressed their
concern about how prohibitions on interstate commerce will impact their
ability to acquire items for museum collections. We recognize that
museums can play a unique role in society by curating objects that are
of historical and cultural significance. We are considering including
an exception to the prohibitions on interstate commerce for museums,
either through this rulemaking process or through a separate rulemaking
under the ESA. We seek comment from the public on this issue.
Additionally, we seek comment on how to best define museums in this
regard, given the diverse interests that they serve.
Import and Export, Other Than Ivory and Sport-Hunted Trophies
Under the current 4(d) rule, African elephants and African elephant
parts and products other than sport-hunted trophies and ivory (e.g.,
live elephants, including those with tusks, and leather products) may
be imported into or exported from the United States without a
threatened species permit, provided all permit requirements of 50 CFR
parts 13 (general permitting regulations) and 23 (CITES regulations)
have been met. This would not change with the proposed revisions to the
4(d) rule. We would, however, add a clarification that the requirements
at 50 CFR part 14 (general import, export, and transport regulations)
must also be met.
As noted earlier, the import into the United States of live
elephants, including those with tusks, is not regulated under the
AfECA. In section 4202(2) (16 U.S.C. 4202(2)) of the statute, Congress
found that it is the large illegal trade in ivory that is the
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major cause of decline of the species and threatens its existence.
Although live elephants may have tusks, there is no information
indicating that the limited import of live elephants for conservation
or zoological exhibition purposes has ever negatively affected the
species. Live African elephants are only occasionally imported into the
United States (most live elephants held in captivity in the United
States are Asian elephants). During the 5 years from 2009 to 2013,
there were eight live African elephants imported into the United States
(four in 2011 and four in 2013), all for zoological or educational
purposes. Three of these animals were pre-Convention (removed from the
wild prior to 1976); the other five were either captive born or captive
bred. In addition, the AfECA's focus on regulating ivory primarily
through moratoria on the import of raw and worked ivory (not elephants
themselves) indicates Congress' intent to regulate ivory as a
commodity, not ivory that is attached to a live elephant and therefore
cannot be commercialized separate from the elephant itself. Likewise,
the AfECA prohibitions all address the import or export of raw or
worked ``ivory,'' not elephants. Finally, the definition of ``raw
ivory'' also indicates that Congress intended the term not to apply to
live elephants. The term raw ivory in section 4244(10) (16 U.S.C.
4244(10)) means any ``tusk, and any piece thereof, the surface of
which, polished or unpolished, is unaltered or minimally carved.'' The
references to pieces of tusks and the polishing or carving of tusks
when read in the context of the definition and application of the term
``raw ivory'' in the statute indicate that the definition is speaking
of tusks that are no longer attached to a live animal.
When establishing regulations for threatened species under the ESA,
the Service has generally adopted restrictions on the import and export
of live as well as dead animals and their parts and products, either
through a 4(d) rule or through the provisions of 50 CFR 17.31. In this
case, import and export of both live and dead African elephants and all
parts and products are already carefully regulated under CITES. Under
CITES and the U.S. regulations that implement CITES at 50 CFR part 23,
the United States regulates and monitors all commercial and
noncommercial trade in African elephants and any parts and products
that are imported into or exported from the country. All African
elephant populations are protected under CITES, with most populations
listed in Appendix I and only four populations (those in Botswana,
Namibia, South Africa, and Zimbabwe) listed in Appendix II. Import into
and export from the United States of African elephant specimens will
continue to require CITES documentation.
Under CITES, for nearly all live or dead elephants and elephant
parts or products, including those from Appendix II populations, the
exporting country must issue an export permit that is supported by
findings that the specimen was legally acquired under national laws,
that the export will not be detrimental to the survival of the species,
and, for live animals, that the elephant will be shipped in a manner
that minimizes the risk of injury, damage to health, or cruel
treatment. The CITES export permit must be presented upon export and
must also be presented to U.S. officials upon import into the United
States. For nearly all Appendix-I African elephant specimens, a CITES
import permit would also have to be issued by the Service after finding
that the import will be for purposes that are not detrimental to the
survival of the species, that the specimen will not be used for
primarily commercial purposes, and, for a live animal, that the
proposed recipient is suitably equipped to house and care for the
elephant. Any later re-export of African elephant specimens would
require additional CITES documents.
Some limited exceptions to these permitting requirements exist.
Consistent with an exception in the Convention, the Service provides an
exemption from permitting requirements for personal and household
effects, but only for dead specimens and not for most Appendix-I
specimens. Personal and household effects must be personally owned for
noncommercial purposes, and the quantity imported or exported must be
necessary or appropriate for the nature of the trip or household use.
The exemption is extremely limited for items containing African
elephant ivory (see 50 CFR 23.15(f)). Not all CITES countries have
adopted the personal and household effects exemption, so individuals
who might cross an international border with an African elephant item
and want to take advantage of this exemption would need to check with
the Service and any country of transit in advance for documentation
requirements. There is also an exemption for pre-Convention animals and
parts or products, but a person who wants to transport an item under
this exemption must obtain and present to government officials upon
export and import a CITES pre-Convention certificate that verifies that
the specimen was acquired before the Convention applied to it.
In addition to the requirements under CITES, individuals who import
or export wildlife and wildlife products into or from the United States
must file wildlife declaration forms with the Service's Office of Law
Enforcement and must use designated ports. Individuals who are in the
business of importing and exporting wildlife and wildlife products must
be licensed by the Service. These requirements allow us to monitor the
species and quantity of wildlife that are imported into and exported
from the United States and ensure that such trade is legal.
The need to address the increase in illegal killing and illegal
trade of African elephants is linked to the economic value of and
international market in ivory. There is no information indicating that
the conservation status and management needs of the species are linked
to the occasional import of live elephants into the United States for
captive propagation programs or public education and display, or to the
market in hides and other non-ivory parts or products. The Service
monitors U.S. imports and exports of elephant specimens through
wildlife declaration forms, and all CITES Parties are required to
submit annual reports on trade in CITES species and the number and
types of CITES permits and certificates issued each year. This
information verifies that import and export of live African elephants
and parts or products other than ivory and sport-hunted trophies is
small and does not affect the conservation of the species. There is no
evidence of an illegal market in live elephants or parts and products
other than ivory.
In addition, as noted above, import and export of African elephant
specimens would continue to be strictly regulated through the
documentation procedures and required findings under CITES.
Particularly relevant to the major threats facing African elephants,
these CITES documents are not issued unless the importing or exporting
countries find that the import or export would not be detrimental to
the survival of the species, that the live animal or part or product
was legally acquired, and that the specimen will not be used for
primarily commercial purposes. Requiring individuals to obtain an ESA
threatened species permit in addition to the required CITES documents
prior to import or export of live animals and parts or products other
than ivory and trophies would add no meaningful protection for the
species and would be an unnecessary overlay of authorization on top of
existing documentation that
[[Page 45165]]
already ensures that the import or export is legal and not detrimental
to the survival of the species. Therefore, because the import and
export of live African elephants and parts or products other than ivory
and sport-hunted trophies must comply with the strict provisions of
CITES and other U.S. import/export requirements and because the import
or export of such animals and parts or products poses no risk to the
species, we find that authorization under the ESA to import or export
African elephant specimens other than sport-hunted trophies or ivory
remains neither necessary nor appropriate provided that all import and
export requirements under CITES and other U.S. laws have been met.
Import and Export of Sport-Hunted Trophies
As noted earlier, the ESA does not prohibit U.S. hunters from
traveling to other countries and taking threatened species, but
authorization may be required under the ESA to import the sport-hunted
trophy into the United States. We are proposing to limit the number of
sport-hunted African elephant trophies that may be imported into the
United States to two per hunter per year. This action is intended to
address a small number of circumstances in which U.S. hunters have
participated in legal elephant culling operations and imported, as
sport-hunted trophies, a large number of elephant tusks from animals
taken as part of the cull. We propose to disallow this activity, which
has resulted, in some cases, in the import of commercial quantities of
ivory as sport-hunted trophies. Based on our import records, we expect
this proposed change to impact fewer than 10 hunters per year.
This proposed change is consistent with the purposes of the ESA and
CITES. Sport hunting is meant to be a personal, noncommercial activity.
Engaging in hunting that results in acquiring quantities of ivory that
exceed what would reasonably be expected for personal use and enjoyment
is inconsistent with sport hunting as a noncommercial activity. Given
the current conservation concerns with escalating illegal trade in
ivory and the associated levels of illegal killing to supply that
trade, it is consistent with the purposes of the ESA and other
provisions in this proposed rule regulating commercialization of ivory
to more closely regulate activities that have resulted in the import of
large quantities of raw ivory into the United States.
This provision is also consistent with Congress' intent under the
AfECA. Congress included in the AfECA an exemption from the import
moratorium for sport-hunted trophies legally taken in an elephant range
country, but that was on the basis of finding that sport hunting does
not directly or indirectly contribute to the illegal trade in African
elephant ivory. The escalating illegal trade of ivory is currently
driving unprecedented increases in the illegal killing of elephants. We
therefore find it is necessary to use our authority under section 4(d)
of the ESA to ensure that ivory imported into the United States as
sport-hunted trophies is in fact the result of sport hunting and is not
commercialized. Section 4241 of the AfECA (16 U.S.C. 4241) expressly
states that the Service's authority under the AfECA is in addition to
and does not affect the Service's legal authority under the ESA, which
includes our legal authority under section 4(d). The AfECA therefore
does not preclude us from using our authority under the ESA to limit
the number of African elephant trophies imported by an individual
hunter each year to appropriate levels. For certain species, the
parties to CITES have set limits on the number of trophies that any one
hunter may import in a calendar year, which currently for leopards is
no more than two, for markhor is no more than one, and for black
rhinoceros is no more than one. See 50 CFR 23.74(d). Taking into
consideration these decisions by the parties to CITES, we similarly
propose to set the limit at two African elephants per hunter per year.
We are also proposing to require issuance of a threatened species
permit under 50 CFR 17.32 for import of all African elephant sport-
hunted trophies. The current 4(d) rule provides conditions under which
sport-hunted African elephant trophies may be imported into the United
States, one of which is that the Service has made a determination that
the killing of the trophy animal would enhance the survival of the
species.
For elephant trophies taken from CITES Appendix-I populations, we
issue a combined CITES/ESA import permit and the ESA finding is
communicated through that permit. Under the current 4(d) rule, we do
not issue an import permit for trophies from Appendix-II populations
and the ESA finding is communicated through public notification,
including in the Federal Register.
For the import of sport-hunted trophies from Appendix-II
populations, revision of the 4(d) rule would mean that the enhancement
finding required under the current 4(d) rule would be communicated
through the threatened species permitting process under 50 CFR 17.32.
This change in procedure would not result in any significant burden to
U.S. hunters and would not affect whether future hunters would be able
to obtain trophy import permits. The standards for making enhancement
findings for each African elephant range country under the current 4(d)
rule are the same as the standards for making findings for import
permits for sport-hunted trophies of other species classified as
threatened, where such findings are required. The standards for making
enhancement findings under the current 4(d) rule are also the same as
the standards that would be used in the future for making enhancement
findings for African elephant trophy imports through the threatened
species permit process. Permits have always been required for the
import of African elephant trophies from any Appendix-I country, so it
is only trophies from the four Appendix-II countries that would now
also require import authorization through a threatened species permit.
Hunters would benefit from the consistency of having all African
elephant import authorizations provided through the permitting process
(we expect it would reduce confusion regarding the process for
obtaining import authorization, depending on the country) and benefit
from a process that would allow them to submit relevant information
through the permit application. Hunters seeking authorization to import
a trophy from an Appendix-II population would also now be able to take
advantage of the process for requesting reconsideration and appeal of a
permit denial under 50 CFR 13.29. The Service would benefit from having
a consistent process for authorizing ESA importation of African
elephant sport-hunted trophies, as well as having the ability to obtain
current information from hunters that is relevant to making the
enhancement findings.
As provided in section 9(c)(2) (16 U.S.C. 1538(c)(2)) and our
regulations at 50 CFR 17.8, the ESA provides a limited exemption for
the import of some threatened species, which is frequently used by
hunters to import sport-hunted trophies. Importation of threatened
species that are also listed under CITES Appendix II are presumed not
to be in violation of the ESA if the importation is not made in the
course of a commercial activity, all CITES requirements have been met,
and all general wildlife import requirements under 50 CFR part 14 have
been met. This presumption can be rebutted, however, when information
shows that
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the species' conservation and survival would benefit from the granting
of ESA authorization prior to import. The Service determined that this
was the case in 1997 and 2000, when the four populations of African
elephants were transferred from CITES Appendix I to CITES Appendix II
and we retained the requirement for ESA enhancement findings prior to
the import of sport-hunted trophies. We amended the African elephant
4(d) rule in June of 2014, again maintaining the requirement for an ESA
enhancement finding prior to allowing the import of African elephant
sport-hunted trophies.
Our proposal to require issuance of threatened species enhancement
permits under 50 CFR 17.32 for the import of any African elephant
hunting trophy would change the procedure for issuing ESA authorization
but not change the requirement that an enhancement finding be made
prior to import into the United States. As described in the Need for
Regulatory Actions section, the overall conservation status of African
elephants has deteriorated in the years following the transfer of the
four populations of African elephants to CITES Appendix II. Extensive
and well-documented information indicates that the escalating rate of
illegal killing of African elephants is driven by the illegal markets
for elephant ivory. This information affirms the need to continue
making enhancement findings prior to allowing the import of sport-
hunted trophies that consist entirely or in part of the ivory tusks
from the elephant. Authorizing importation of all sport-hunted trophies
through threatened species enhancement permits would allow us to more
carefully evaluate trophy imports in accordance with legal standards
and the conservation needs of the species. For example, the issuance of
threatened species enhancement permits under 50 CFR 17.32 would mean
that the standards under 50 CFR part 13 would also be in effect, such
as the requirement that an applicant submit complete and accurate
information during the application process and the ability of the
Service to deny permits in situations where the applicant has been
assessed a civil or criminal penalty under certain circumstances,
failed to disclose material information, or made false statements.
Therefore, we have determined that the additional safeguard of
requiring the issuance of threatened species enhancement permits under
50 CFR 17.32 prior to the import of sport-hunted trophies is warranted.
In addition, the 4(d) rule would incorporate certain restrictions
under the AfECA on the import and export of sport-hunted trophies. We
do not have separate AfECA regulations and consider that including
restrictions in the 4(d) rule that have their source in the AfECA would
provide hunters and other members of the public easy access to
information on all requirements that apply to activities with African
elephant sport-hunted trophies. All of these provisions are also
appropriate conservation measures for the species under the ESA that
ensure that hunting of African elephants by U.S. citizens is
sustainable and legal under the laws of the range country and that any
ivory associated with the trophy does not contribute to the illegal
killing of elephants. Adopting these AfECA provisions as appropriate
conservation measures for the species under section 4(d) of the ESA
would also make a violation of relevant provisions of the AfECA a
violation of the ESA, thus increasing protections for African elephants
when a person violates the AfECA.
The AfECA provides for the import of sport-hunted African elephant
trophies but only if the trophy was legally taken in an African
elephant range country that has declared an ivory export quota to the
CITES Secretariat. These requirements have been incorporated into the
proposed 4(d) rule. Also, the AfECA provides an exemption from any
moratorium for the import of African elephant sport-hunted trophies,
but the exemption applies to import only, not export. The export of all
raw ivory is prohibited under section 4223(2) of the AfECA (16 U.S.C.
4223(2)). We propose to incorporate into the 4(d) rule the AfECA
prohibition on the export of raw ivory. Export of raw ivory would not
be allowed even under an ESA threatened species permit because the
AfECA prohibition would still stand; similarly, export of raw ivory
that qualified as an antique under the ESA, while not regulated under
the proposed 4(d) rule, would still be prohibited under the AfECA. We
have also proposed minor revisions to the 4(d) rule to clarify that
general wildlife import requirements under 50 CFR part 14 also apply to
the import of sport-hunted trophies and to more closely align import
requirements with the recommendations in CITES Resolution Conf. 10.10
(Rev. CoP16), Trade in elephant specimens.
The revised 4(d) rule would also allow the noncommercial export of
worked ivory that was imported as part of a sport-hunted trophy
provided it meets one of the exceptions we have proposed for scientific
or law enforcement purposes or as part of a musical instrument,
traveling exhibition, or household move or inheritance. Worked ivory
that had been imported as a sport-hunted trophy could also be exported
if it qualifies as an ESA antique.
Import and Export of Ivory, Other Than Sport-Hunted Trophies
Under the current 4(d) rule, import of raw or worked ivory other
than sport-hunted trophies is allowed only if it is a bona fide antique
greater than 100 years old or it is being imported following export
from the United States after being registered with the Service. Under
the terms of the 1989 AfECA moratorium, the import of raw and worked
African elephant ivory, other than ivory from legally taken sport-
hunted trophies, is prohibited from both African elephant range
countries and intermediary countries (i.e., countries that export ivory
that did not originate in the country).
Under the proposed revisions to the 4(d) rule, import of ivory
other than sport-hunted trophies would be prohibited, with limited,
narrow exceptions including: the import of raw ivory by a government
agency for law enforcement purposes or for a genuine scientific purpose
that will contribute to the conservation of the African elephant; and
the import of worked ivory under these same exceptions for law
enforcement or scientific purposes that will contribute to the
conservation of the species, or as part of a musical instrument, an
item in a traveling exhibition, or as part of a household move or
inheritance. The export of raw ivory would be prohibited under the
proposed revisions to the 4(d) rule and the export of worked ivory
would be limited to those items that qualify for the exceptions
described above. Section 4(d) of the ESA does not apply to items that
qualify as antiques and therefore these proposed prohibitions on import
and export of ivory do not apply to ESA antiques. However, as noted
previously, the prohibitions on import and export of ivory under the
AfECA would still apply, regardless of the age of the item. The
proposed revisions are consistent with the 1989 AfECA moratorium, and
are generally consistent with the Service's Director's Order No. 210,
as amended on May 15, 2014. We have determined that these provisions
are appropriate under the ESA for the conservation of the African
elephant.
Restrictions on import and export are appropriate under both the
AfECA and the ESA because strict regulation of the import and export of
ivory are necessary to prevent U.S. citizens and others
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subject to the jurisdiction of the United States from engaging in
activities that could contribute to the illegal killing of elephants.
Nonetheless, situations where not allowing the activity could actually
be detrimental to the conservation of the species, or limited
circumstances where careful controls would be in place to make it
likely that the activity will not contribute to illegal trade in ivory
or the killing of elephants for their ivory, can be allowed. Adopting
the AfECA provisions as appropriate conservation measures for the
species under section 4(d) of the ESA would make a violation of the
AfECA a violation of the ESA, thus increasing protections for African
elephants when a person violates the AfECA. Finally, because there are
no AfECA regulations in the Code of Federal Regulations, the public
would benefit from having all legal requirements relating to the import
and export of African elephant ivory located in one place through the
4(d) rule.
On June 9, 1989, the Service established the current moratorium on
the importation of both raw and worked ivory (other than that from
sport-hunted trophies) after finding that most ivory was traded outside
of the CITES Ivory Trade Control System that existed at that time and
that illegal and excessive taking of elephants was taking place at
unsustainable levels (54 FR 24758). African elephant range countries
were unable to effectively control taking of elephants and intermediary
countries could not ensure that all ivory in trade originated from
legal sources. Specifically, the Service found that most ivory range
countries had such low elephant populations that the countries had
determined that no sustainable harvest was possible and had requested
no ivory export quota for that year; that there was likely no
sustainable harvest of elephants throughout most of Africa, even for
those countries that had export quotas, due to declining populations;
and that most African elephant range countries had significant poaching
problems. For intermediary countries, the Service determined that all
major intermediary countries that were parties to CITES at that time
had engaged in import of raw ivory from other intermediary countries
(alone a criterion for establishment of a moratorium under the AfECA)
and that due to the virtual impossibility of distinguishing legal from
illegal ivory, it was no longer possible for any intermediary country
to ensure that it was not importing ivory from a range country in
violation of the laws of that country.
In recent years, many of the conditions that supported imposing the
moratorium have continued or even worsened. In particular, recent
information shows that for elephant range countries, the taking of
elephants is not effectively controlled and the amounts of raw ivory
that are being illegally exported from these countries are undermining
the conservation of elephants. For intermediary countries, recent
information on the scope and extent of illegal ivory trade shows that
these countries are importing (through illegal trade) raw or worked
ivory that originates in range countries in violation of the laws of
the range countries. However, some actions in the United States, in
other countries, and through CITES, have been taken to strengthen
controls on poaching and illegal trade. In January 1990, all
populations of African elephants were transferred from CITES Appendix
II to Appendix I, which generally ended legal commercial trade in
African elephant ivory. In 1997, based on proposals submitted by
Botswana, Namibia, and Zimbabwe and the report of a Panel of Experts,
the CITES Parties agreed to transfer the African elephant populations
in these three countries to CITES Appendix II. The Appendix-II listing
included an annotation that allowed noncommercial export of hunting
trophies, export of live animals to appropriate and acceptable
destinations, export of hides from Zimbabwe, and noncommercial export
of leather goods and some ivory carvings from Zimbabwe. It also allowed
for a one-time export of raw ivory to Japan (which took place in 1999),
once certain conditions had been met. All other African elephant
specimens from these three countries were deemed to be specimens of a
species listed in Appendix I and regulated accordingly.
The population of South Africa was transferred from CITES Appendix
I to Appendix II in 2000, with an annotation that allowed trade in
hunting trophies for noncommercial purposes, trade in live animals for
reintroduction purposes, and trade in hides and leather goods. Since
then, the CITES Parties have revised the Appendix-II listing annotation
three times. The current annotation, in place since 2007, covers the
Appendix-II populations of Botswana, Namibia, South Africa, and
Zimbabwe and allows export of: Sport-hunted trophies for noncommercial
purposes; live animals to appropriate and acceptable destinations;
hides; hair; certain ivory carvings from Namibia and Zimbabwe for
noncommercial purposes; and a one-time export of specific quantities of
raw ivory, once certain conditions had been met (this export, to China
and Japan, took place in 2009). As in previous versions of the
annotation, all other African elephant specimens from these four
populations are deemed to be specimens of species included in Appendix
I and the trade in them is regulated accordingly.
Most recently, the Service determined in April 2014 that import of
sport-hunted trophies from Tanzania and Zimbabwe could not be allowed
until new information is received, because the killing of African
elephants for trophies does not meet the enhancement standard under the
current 4(d) rule. The Service understands that Botswana has closed its
sport-hunting program on government land for 2014 (although hunting on
private concessions continues) and is not currently allowing exports.
South Africa and Namibia continue to have well-managed elephant
conservation programs; the Service's findings remain in place that the
killing of trophy animals from these countries for import into the
United States enhances the survival of the species.
All of this information, along with the recent levels of illegal
killing and illegal trade as described in the section Need for
Regulatory Actions, indicates that the circumstances facing African
elephants and involving ivory in both range countries and intermediary
countries support adoption of these restrictions for the species under
the ESA. The threats facing the species call for all appropriate
actions to restrict the import of African elephant ivory where that
import is likely to contribute to commercializing elephant ivory. We
believe that it is appropriate to allow certain limited exceptions to
these import restrictions under the 4(d) rule, however, where import
either would be beneficial to law enforcement or the conservation of
the species, or where import of certain worked ivory meets strict
criteria and is regulated in such a manner that it does not contribute
to the illegal trade in ivory and poses no risk to elephant
populations.
We propose to allow the import of raw or worked ivory into the
United States or the export of worked ivory from the United States when
it would be directly beneficial for law enforcement efforts. Under this
exception, raw or worked ivory could be imported into the United States
and worked ivory could be exported from the United States only by an
employee or agent of a Federal, State, or tribal government agency for
law enforcement purposes. Specimens from protected species are
frequently used as evidence to prosecute violations of law in the
United States, and this may require the import of ivory from other
countries. Likewise, there may be situations where worked ivory would
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need to be exported from the United States by a Federal, State, or
tribal agency to assist with a law enforcement action in another
country. Not having this exception would hinder the Service's ability
to enforce Federal laws such as the AfECA, the ESA, and the Lacey Act
that protect African elephants and other wildlife. It could also hinder
other Federal agencies, States, and tribes from effective enforcement
of their laws. Not including this exception would be contrary to the
AfECA's policy to assist in the conservation and protection of the
African elephant by supporting the conservation programs of African
countries and the CITES Secretariat, which represents the interests of
all parties to CITES including the United States. The limitation that
ivory could only be imported or exported by an employee or agent of a
Federal, State, or tribal government would ensure that the exception is
invoked only in appropriate circumstances. Any ivory imported or
exported under this exception would be strictly for noncommercial law
enforcement purposes, and therefore could not subsequently be sold or
offered for sale in interstate or foreign commerce or delivered,
received, carried, transported, or shipped in interstate or foreign
commerce in the course of a commercial activity, even if it qualified
under the de minimis exception. The limited applicability of this
exception to noncommercial import or export by government officials for
law enforcement purposes indicates that no ESA threatened species
permit should be required. Such a permit would provide no protection
for the species and would inhibit law enforcement officials' ability to
respond quickly to enforcement needs involving the import or export of
African elephant ivory.
We also propose to allow the import or export of ivory when it
would contribute to the conservation of African elephants. Under this
exception, either raw or worked African elephant ivory could be
imported into the United States and worked ivory could be exported from
the United States for genuine scientific purposes that would benefit
elephant conservation. For example, researchers in the United States
have developed techniques to determine the origin of ivory, and the
import of ivory samples is essential to this work. In such instances,
prohibition of import would hinder science that could assist in
protecting the species from poaching or illegal trade in ivory, or
could result in valuable information that addresses other threats to
the species. Similarly, the export of worked African elephant ivory
could assist both U.S. scientists that are located outside the United
States and scientists from other countries in their work to conserve
the species. We believe that allowing under the 4(d) rule import and
export of ivory in these circumstances is necessary and appropriate for
the conservation of the African elephant; it is also consistent with
the AfECA's purpose to ``perpetuate healthy populations of African
elephants.'' Any ivory imported or exported under this exception would
be strictly for genuine scientific purposes, and could not subsequently
be sold or offered for sale in interstate or foreign commerce or
delivered, received, carried, transported, or shipped in interstate or
foreign commerce in the course of a commercial activity, even if it
qualified under the de minimis exception. The requirement to obtain a
threatened species permit under 50 CFR 17.32 prior to import or export
would ensure that the activity meets the standard of being for a
genuine scientific purpose and that the science will actually
contribute to the conservation of African elephants.
We are also proposing to allow the noncommercial import or export
of carefully regulated items containing worked elephant ivory that are
appropriate exceptions to the import moratorium and appropriate
provisions under the 4(d) rule. None of these exceptions allows the
import or export of raw ivory. The exceptions are for qualifying
musical instruments, items in certain travelling exhibitions, and
qualifying items that are part of an inheritance or household move.
Under all three of these exceptions, the importer or exporter would
need to show that the African elephant ivory in the item was legally
acquired and removed from the wild prior to February 26, 1976 (the date
the African elephant was first listed under CITES). This does not
necessarily mean that the current owner of an item containing ivory, a
musical instrument, for example, acquired the instrument or the ivory
in the instrument prior to February 1976. It means that there is
sufficient information to show that the ivory was harvested (taken from
the wild) prior to February 26, 1976, even though the instrument may
not have been manufactured until after that date. It also means that
there is sufficient information to show that the ivory was harvested in
compliance with all applicable laws of the range country and that any
subsequent import and export of the ivory and the instrument containing
the ivory was legal under CITES and other applicable laws
(understanding that the instrument may have changed hands many times
before being acquired by the current owner).
These requirements would ensure that any item imported or exported
under one of these three exceptions originated from elephants that were
legally taken prior to the date that African elephants were first
protected under CITES, the ESA, and the AfECA and therefore before
contemporary laws and programs were developed to address current
threats to the species. The ivory would have originated from elephants
taken prior to development of the conservation programs of African
countries and the CITES Secretariat referenced in section 4203 of the
AfECA that the AfECA was enacted to support. This would also mean that
any ivory imported or exported under the exceptions originated before
U.S. citizens and other individuals subject to the jurisdiction of the
United States were first regulated under these laws. The showing that
the ivory was legally acquired would ensure that the ivory contained in
the item was not previously part of the global market in illegal ivory.
Thus these requirements would minimize the chances that the worked
ivory in items imported or exported under these three exceptions
contributed to the killing of elephants that the AfECA and listing
under the ESA and CITES were designed to address or that the owner or
others who may have owned the ivory played a role in the taking of the
elephant in contravention of U.S. laws to protect the species.
Under all three of these exceptions, the importer or exporter would
have to obtain the appropriate CITES document showing that the import
or export is in full compliance with CITES requirements. The
requirement to obtain appropriate CITES documents would ensure that
each item imported or exported under one of these three exceptions
qualifies under CITES' strict standards and that all such import and
export will be monitored and reported to the CITES Secretariat in each
Party's annual report. Any musical instrument or item in a traveling
exhibition would also have to be securely marked or uniquely identified
so that authorities at U.S. and foreign ports can verify that the item
presented for import or export is actually the specimen for which the
CITES document was issued. While items imported or exported under a
CITES pre-Convention certificate (as part of a household move or
inheritance) do not specifically need to be marked or identified, port
authorities would verify that the description and quantity of any items
presented for import or export match what is
[[Page 45169]]
described in the CITES document. All of this would ensure that each
import or export of items under these exceptions is verified and
monitored, which ensures that all such import and export remains legal.
A CITES musical instrument certificate or equivalent CITES document
would be issued for the import and export of personally owned
instruments containing African elephant ivory to facilitate the
frequent, noncommercial, cross-border movement of instruments that are
being used for noncommercial purposes. Noncommercial purposes could
include personal use, performance, display, or competition where the
musician is financially compensated for his or her participation, but
does not include financial gain through activities such as sale or
lease of the instrument itself. Under the terms for obtaining a CITES
musical instrument certificate (contained in CITES Resolution Conf.
16.8, Frequent cross-border non-commercial movements of musical
instruments), the individual seeking a certificate would need to
demonstrate that the CITES specimens contained in the instrument, in
this case African elephant ivory, were acquired (removed from the wild)
prior to February 26, 1976 (the date that African elephants were first
listed under CITES). In addition, the country issuing the certificate
would need to find that the elephant ivory used to manufacture the
instrument was legally acquired under CITES. The issuing country would
also include as a condition on the certificate a statement that the
ivory covered by the certificate is for noncommercial use only and may
not be sold, traded, or otherwise disposed of outside the certificate
holder's country of usual residence. This restriction would also be
included as a prohibition in the 4(d) rule, although musical
instruments containing ivory that are owned by individuals whose
residence is the United States could be sold or offered for sale in
interstate or foreign commerce or delivered, received, carried,
transported, or shipped in interstate or foreign commerce in the course
of a commercial activity once the instrument was returned to the United
States if the instrument qualified under the de minimis exception.
Musical instrument certificates are used like passports. Upon each
export and import, the original certificate is presented to the
appropriate border control officer, who inspects the certificate,
verifies that the certificate corresponds to the instrument presented
for import, and validates the certificate to document the history of
each cross-border movement. All of these requirements would limit use
of the exception to personally owned musical instruments containing
legally acquired, pre-Convention ivory, and ensure that any instrument
entering the United States would be used for noncommercial purposes
only, and that an instrument would not be commercialized while
traveling under the authorization of the CITES certificate. These
requirements provide adequate assurances that any import or export of
such instruments would not contribute to either the illegal trade in
elephant ivory or the illegal killing of elephants.
A CITES traveling exhibition certificate would be issued for the
import and export of items consisting of or containing African elephant
ivory to facilitate the frequent cross-border movement of items that
are part of an orchestra, museum, or similar exhibition registered in
the country in which the traveling exhibition is based. Under the terms
for obtaining the CITES certificate (contained in CITES Resolution 12.3
(Rev. CoP16), Permits and certificates and in our regulations at 50 CFR
23.49), the ivory in the traveling exhibition must be pre-Convention
ivory (i.e., it was acquired prior to February 26, 1976, the date that
African elephants were first listed under CITES). Similar to the
musical instrument certificate, the country issuing the certificate
would need to find that any item containing elephant ivory was legally
acquired under CITES and would be returned to the country in which the
exhibition is based. The country issuing the certificate would also
include the condition that the ivory covered by the certificate may not
be sold or otherwise transferred in any country other than the country
in which the exhibition is based and registered. This restriction would
also be included as a prohibition in the 4(d) rule, although exhibition
items containing ivory that are owned by persons who are based in the
United States could be sold or offered for sale in interstate or
foreign commerce or delivered, received, carried, transported, or
shipped in interstate or foreign commerce in the course of a commercial
activity if the item qualified under the de minimis exception and the
exhibition was back in the United States. Like musical instrument
certificates, traveling exhibition certificates are used like
passports. Upon each import or export, the original certificate is
presented to the appropriate border control officer, who inspects the
certificate, verifies that the certificate corresponds to the item
presented for import, and validates the certificate to document the
history of each cross-border movement. Similar to the strict regulation
of musical instruments, these requirements would limit use of the
exception to items consisting of or containing African elephant ivory
legally acquired prior to February 26, 1976, and ensure that the item
would not be commercialized while outside the country in which the
exhibition is based while traveling under the authorization of the
CITES certificate. These requirements provide adequate assurances that
any import or export of these items would not contribute to either the
illegal trade in elephant ivory or the illegal killing of elephants.
Items imported or exported as part of an inheritance or a household
move under the final exception would need to be for personal use only
and accompanied by a valid CITES pre-Convention certificate. To qualify
for a pre-Convention certificate, the importer or exporter of an item
containing African elephant ivory would need to present sufficient
information to show that the ivory was removed from the wild prior to
February 26, 1976. There must also be sufficient information to show
that the ivory was harvested in compliance with all applicable laws of
the range country and that any subsequent import and export of the
ivory and the instrument containing the ivory was legal under CITES and
other applicable laws. For any item imported or exported as an
inheritance, the importer or exporter would also need to show that the
item was received through an inheritance. For any item imported or
exported as part of a household move, the importer or exporter would
need to show that they own the item, that it was legally acquired, and
that they are moving it for personal use. Any such items would need to
be imported or exported within 1 year of changing residence from one
country to another and the shipment would need to contain only ivory
items purchased, inherited, or otherwise acquired prior to the change
in residence. Finally, the type and quantity of ivory items imported or
exported under this exception would need to be appropriate for a
household move. Because any ivory imported or exported under this
exception would be solely for personal use, any such ivory could not
subsequently be sold or offered for sale in interstate or foreign
commerce or delivered, received, carried, transported, or shipped in
interstate or foreign commerce in the course of a commercial activity,
even if
[[Page 45170]]
it qualified under the de minimis exception.
All of these requirements would help to ensure that any imports or
exports under these proposed exceptions did not contribute to past
poaching and smuggling, did not contribute to the recent increase in
illegal killing of elephants and illegal trade of ivory, and would be
in compliance with AfECA requirements. In addition, the requirements
that items under most of the exceptions must be imported or exported
for personal or noncommercial use only, the limits on sale or other
disposal of musical instruments and exhibition items while the item is
traveling under the CITES certificate, the requirement that inherited
items must be documented as acquired through an inheritance and not
purchase, the requirement that household move items are limited to the
number and type that would reasonably be expected for a person's move
of their household, the requirement that household move items must be
imported or exported within 1 year of a documented change of residence,
and the prohibition on commercialization of inherited or household move
items even if they qualify under the de minimis exception would
minimize the chances of these exceptions being used as a means to
commercialize ivory.
Because of the strict requirements that must be met to be eligible
for import or export of any item under these three exceptions, we are
proposing that no additional threatened species permit would be
required under 50 CFR 17.32. The requirements to obtain the relevant
CITES document, the findings that must be made before the CITES
document can be issued, and the requirement to present the item along
with all required CITES and general wildlife import/export documents to
Federal officials upon import or export would ensure that each import
or export is legal and adequately monitored. Presentation of the items
and documents upon import or export would also provide Federal
officials the opportunity to make sure that all other requirements have
been met. Requiring individuals to obtain an ESA threatened species
permit in addition to the required CITES documents prior to import or
export of items under these limited exceptions would be an unnecessary
overlay of documents on top of existing CITES documentation that
ensures that such import or export is not contributing to the illegal
killing of elephants.
All of these exceptions are identical or similar to the exceptions
to the AfECA import moratorium that were provided as a matter of law
enforcement discretion through Director's Order No. 210, as amended on
May 15, 2014. The only substantive change is that the Director's Order
contained an additional standard that any musical instrument, item in a
traveling exhibition, item in a household move, or inherited item
containing ivory could not be imported if it had been transferred from
one person to another person for financial gain or profit since
February 25, 2014 (the date of the original Director's Order). We have
determined that this restriction is not needed because with this
proposed rule it would be a violation of the ESA for any person to sell
or offer for sale ivory or sport-hunted trophies in interstate or
foreign commerce or to deliver, receive, carry, transport, or ship
ivory or sport-hunted trophies in interstate or foreign commerce in the
course of a commercial activity except for certain manufactured items
that would qualify under the de minimis exception. Therefore any U.S.
citizen or other person subject to the jurisdiction of the United
States who commercialized an item containing ivory or a sport-hunted
trophy in violation of these prohibitions would be in violation of this
rule regardless of whether this additional restriction were in place.
Under the current 4(d) rule, worked ivory may be exported in
accordance with the requirements in 50 CFR parts 13 and 23, and raw
ivory may not be exported from the United States for commercial
purposes under any circumstances. Under the AfECA, the export of all
raw ivory is prohibited. We propose to revise the 4(d) rule to prohibit
export of raw ivory, consistent with the AfECA prohibition, with the
exception of antiques. For the same reasons discussed above, we also
propose to prohibit export of worked ivory, other than antiques, except
in the same limited circumstances and for the same limited purposes
allowed for import: By a government agency for law enforcement
purposes, for a genuine scientific purpose that will contribute to the
conservation of the African elephant, as part of a qualifying musical
instrument, as a qualifying item in a traveling exhibition, or as a
qualifying item that is part of a household move or inheritance.
In developing this proposed rule, we have given very careful
consideration to the types of circumstances and purposes for which we
could allow exceptions to the prohibitions on import and export of
African elephant ivory. However, we seek information and comment
regarding the need for and advisability of finalizing a rule that
includes a broader exception to those prohibitions for the
noncommercial import or export of worked ivory in circumstances that
are not covered by the exceptions for musical instrument, traveling
exhibitions, household moves or inheritances, or genuine scientific
purposes. In particular, we seek information from individuals who may
wish to engage in noncommercial import or export of worked African
elephant ivory that would be prohibited by this proposed rule. We are
also interested in the potential impacts of these prohibitions on
segments of the trade not covered by these exceptions.
Information regarding the illegal killing of elephants and the
alarming growth in illegal trade in elephant ivory shows that all
appropriate actions are needed to restrict the export of raw and worked
African elephant ivory where that export is likely to contribute to
commercializing elephant ivory. It is appropriate, however, to allow
certain limited exceptions to the export prohibition where export
either would be beneficial to law enforcement or the conservation of
the species, or where export of certain articles of worked ivory meet
strict criteria and are regulated in such a manner that their export
would not contribute to the illegal trade in ivory and pose no risk to
elephant populations. Export of worked African elephant ivory would
also be available by threatened species permit under 50 CFR 17.32,
provided the person met all of the requirements of that section as well
as the general permitting requirements under 50 CFR part 13.
As noted previously, Section 4(d) of the ESA does not apply to
items that qualify as antiques. While the prohibitions on import and
export of ivory proposed here thus do not apply to ESA antiques, the
prohibitions on import and export of ivory under AfECA would still
apply, regardless of the age of the item. In addition, certain worked
ivory items that qualify under the ESA section 9(b)(1) ``pre-Act''
exemption (see below) could also be exported (see below). No ESA permit
would be required for any worked ivory that qualified under any of
these provisions, but it would still need to be accompanied by any
required CITES document and meet all requirements under the Service's
general wildlife import/export regulations.
Qualifying Pre-Act Specimens
The ESA provides an exemption in section 9(b)(1) from any
prohibitions contained in a 4(d) rule for specimens of threatened
species ``held in captivity or in a controlled environment'' on the
date the ESA entered into effect
[[Page 45171]]
(December 28, 1973) or the date the final rule listing the species
under the ESA was published in the Federal Register (which for the
African elephant was May 12, 1978), whichever is later. The exemption
applies only if ``such holding and any subsequent holding or use of the
fish or wildlife was not in the course of a commercial activity.'' As
noted above in Interstate and foreign commerce, activities with
threatened species do not qualify as ``commercial activity'' unless the
activity involves the transfer of the specimen from one person to
another person in the pursuit of gain or profit. Therefore, the
exemption would apply unless commercial activity with an African
elephant specimen (including ivory) on or after May 12, 1978, involved
the transfer of the specimen from one person to another person in
pursuit of gain or profit. (See the discussion on activities that occur
``in the course of a commercial activity'' under Interstate and foreign
commerce, above.)
Persons wishing to engage in activities that otherwise would be
prohibited under this 4(d) rule would have the burden of showing that
their activities qualify for this ``pre-Act'' exemption. The statutory
exemption would not change with revision of the 4(d) rule, but it is
also important to remember that nothing in the ESA provides that an
exemption under that law modifies or supersedes provisions in other
applicable statutes such as the AfECA. (See Antique specimens, below,
for a full discussion on the relationship between ESA exemptions and
AfECA restrictions.) Therefore, activities prohibited under the AfECA
remain prohibited, even if the ESA ``pre-Act'' exemption applies.
The pre-Act exemption would apply to the following examples if the
activity met all requirements of the ESA: The prohibition against take
for qualifying live elephants that were held in captivity on May 12,
1978; the prohibition on the export of worked ivory that was held in a
controlled environment on May 12, 1978; and the requirement to get a
threatened species permit for the export of worked ivory to be used for
genuine scientific purposes for ivory that was held in a controlled
environment on May 12, 1978, provided that in each case the holding and
any subsequent holding or use of the live animal or specimen since 1978
did not include transfer from one person to another person in the
pursuit of gain or profit.
In addition, if the holding as of May 12, 1978, or any subsequent
holding or use included a transfer from one person to another person in
the pursuit of gain or profit, the exemption would still be available
if the activities qualified as exhibition of commodities by a museum or
similar cultural or historical organization. All import and export
requirements under CITES and the general wildlife import/export
regulations at 50 CFR part 14 would still need to be met. Section
9(b)(1) of the ESA provides an exemption from ESA threatened-species
prohibitions only, not from requirements that arise under CITES and the
general import/export requirements under the ESA.
Antique Specimens
Section 10(h) of the ESA provides an exemption for antique articles
that are: (a) Not less than 100 years of age; (b) composed in whole or
in part of any endangered species or threatened species; (c) have not
been repaired or modified with any part of any such species on or after
the date of the enactment of the ESA; and (d) are entered at a port
designated for ESA antiques. Any person who is conducting activities
with a qualifying ESA antique is exempt from, among other things, any
restrictions provided in a 4(d) rule for that species, including
restrictions on import; export; sale or offer for sale in interstate or
foreign commerce; and delivery, receipt, carrying, transport, or
shipment in interstate or foreign commerce and in the course of a
commercial activity. The taking prohibition would not apply to dead
specimens such as antiques. Anyone wishing to engage in activities
under this antiques exception must be able to demonstrate that the item
meets the requirements of the ESA.
Items that qualify as antiques under the ESA are not subject to the
prohibitions in the proposed 4(d) rule. The ESA antiques exemption does
not apply, however, to prohibitions imposed under the AfECA on the
import of raw and worked African elephant ivory into the United States
and the export of raw ivory from the United States. As with the ESA
section 9(b)(1) ``pre-Act'' exemption, nothing in the ESA provides that
an exemption under that law modifies or supersedes provisions in other
applicable statutes such as the AfECA. The provisions in the AfECA
regarding the import and certain export of African elephant ivory were
specifically enacted to address conservation concerns with African
elephants and were enacted later in time than the earlier, more general
ESA exemption applicable to all endangered and threatened species, so
the later, more specific restrictions on import and export in the AfECA
take precedence over the earlier, more general exemption in the ESA. As
noted previously, section 4241 of the AfECA (16 U.S.C. 4241) specifies
that the authority of the Service under the AfECA is in addition to and
does not affect the authority of the Service under the ESA.
A qualifying ESA antique containing African elephant ivory could
thus only be imported if it also qualified for one of the exceptions
from enforcement of the AfECA moratorium created by Director's Order
No. 210: antique raw or worked ivory for law enforcement purposes,
antique raw or worked ivory for scientific purposes, antique worked
ivory that is part of a musical instrument, antique worked ivory in a
traveling exhibition, antique worked ivory that is part of a household
move, or antique worked ivory that was inherited. As noted previously,
we believe these exceptions are consistent with Congressional intent in
enacting the AfECA, which focused on the harm caused by poaching to
supply the illegal trade in ivory. An antique sport-hunted trophy could
not qualify for import because it would not be able to meet the
requirements under the AfECA that it was taken from an elephant range
country with an elephant quota declared to the CITES Secretariat (which
did not exist 100 years ago). Because the prohibition on the export of
all raw ivory is under the AfECA, the ESA antique exemption also could
not be used to export antique raw ivory.
For qualifying ESA antiques containing African elephant ivory that
could be imported as described above and antiques containing African
elephant ivory that meet all of the requirements under section 10(h) of
the ESA and were imported before the AfECA import moratorium was put in
place in 1989, whether those antiques could be commercialized in
interstate or foreign commerce would depend on whether restrictions are
based on the ESA or CITES. Any restrictions that are based on CITES or
laws other than the ESA would remain in place.
As discussed earlier, one of the requirements to qualify for the
ESA antiques exemption is that the antique must have been imported into
the United States through a port designated for the import of ESA
antiques. These ports were first designated on September 22, 1982.
Therefore, under the terms of the ESA, no item that contains parts of
any endangered or threatened species (including African elephant ivory)
can qualify under the ESA antiques exemption unless it was imported
into the United States through one of the designated ESA antiques ports
on some date after September 22, 1982.
[[Page 45172]]
On February 25, 2014 (as amended on May 15, 2014), the Service
issued Director's Order No. 210, which, among other things, provides
direction to Service employees on implementation and enforcement of the
ESA antiques exemption. Appendix A to Director's Order No. 210
reiterates the four statutory requirements for an item to qualify as an
ESA antique and states that, as a matter of law enforcement discretion,
the prohibitions under the ESA would not be enforced for antiques that
meet the requirements of being at least 100 years old; being composed
of an endangered or threatened species; and not having been repaired or
modified with any part of an endangered or threatened species since
December 28, 1973, but were imported prior to September 22, 1982, or
were created in the United States and never imported and therefore do
not meet the requirement of having been imported at a designated ESA
antiques port. This Director's Order remains in place. The Service will
apply its law enforcement discretion regarding otherwise qualifying
antiques that were imported prior to September 22, 1982, or were
produced in the United States and never imported, allowing them to be
exported, sold or offered for sale in interstate or foreign commerce,
and delivered, received, carried, transported, or shipped in interstate
or foreign commerce in the course of a commercial activity, provided
all other legal requirements are met. Appendix A of the Director's
Order also contains guidance on documentation needed and other
information for conducting activities with ESA antiques. Director's
Order No. 210, as amended on May 15, 2014, including Appendix A can be
found at http://www.fws.gov/policy/do210.html.
As described in Director's Order No. 210, the person claiming the
benefit of the ESA antiques exemption must provide evidence to
demonstrate that the item qualifies as an ESA antique. This evidence
may include a qualified appraisal, documents that provide detailed
provenance, and/or scientific testing. Since issuance of the Director's
Order, we have heard from some people who are concerned about what the
Service might require in terms of documentation or authentication of
their antique items. We want to be clear that establishing provenance
does not necessarily require destructive testing; there may be other
ways to establish provenance, such as a qualified appraisal or another
method that documents the age by establishing the origin of the item.
We have listed scientific testing (in the Appendix to Director's Order
No. 210) as an option for people who may want to make use of it in
certain circumstance for certain items. However, this is only one
option, in a suite of possible options. The provenance may be
determined through a detailed history of the item, including but not
limited to family photos, ethnographic fieldwork, or other information
that authenticates the item and assigns the work to a known period of
time or, where possible, to a known artist. Scientific testing could be
necessary if there is no other way to establish the provenance of an
item.
In addition, we want to be clear that we do not require scientific
testing of the ivory components in a manufactured antique item. Where a
person can demonstrate that an item, for example a table with ivory
inlays, is older than 100 years, and that the table has not been
repaired or modified with ivory (or any other threatened or endangered
species) since December 28, 1973, the Service considers the age
criteria in Section 10(h) to be met. We would not require testing of
the ivory itself to determine its age. Of course, to qualify for the
ESA antiques exemption a person must demonstrate that all four of the
criteria in Section 10(h) of the ESA have been met.
We also want to clarify that these documentation requirements are
not new. The ESA itself places the burden of proof on the person
claiming the benefit of the exemption (Sec. 10(g)) and the Service has
required documentation for antique items since the 1970s. This
documentation requirement is also not unique to African elephant ivory;
it applies to specimens of any species listed under the ESA when a
person is claiming the benefit of this exemption from prohibitions.
Over the years, the Service has provided information regarding
acceptable documentation for establishing age and provenance; most
recently, in the Appendix to Director's Order No. 210. Our CITES
regulations at 50 CFR 23.34 also provide information on the kinds of
records a person can use to show the origin of a specimen. We seek
comment from the public on whether additional guidance is needed in the
regulatory code regarding implementation of the ESA antiques exemption.
Determination
Section 4(d) of the ESA states that the ``Secretary shall issue
such regulations as [s]he deems necessary and advisable to provide for
the conservation'' of species listed as threatened. Additionally,
section 4(d) of the ESA provides that the Secretary ``may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1).'' Thus regulations promulgated under section
4(d) of the ESA provide the Secretary, as delegated to the Service,
discretion to select appropriate provisions for threatened species,
including prohibitions, exceptions, and required authorizations. Some
of the ESA prohibitions and exceptions from section 9(a)(1) of the ESA
and from 50 CFR 17.31 and 17.32 may be appropriate for the species and
be incorporated into a 4(d) rule. However, the 4(d) rule may also
include other provisions that take into account other applicable laws
and are tailored to the specific conservation needs of the listed
species, and therefore may be more or less restrictive than the general
provisions for threatened species. As noted by Congress when the ESA
was initially enacted, ``once an animal is on the threatened list, the
Secretary has an almost infinite number of options available to [her]
with regard to the permitted activities for those species. [She] may,
for example, permit taking, but not importation of such species, or
[she] may choose to forbid both taking and importation but allow the
transportation of such species,'' as long as the measures will ``serve
to conserve, protect, or restore the species concerned in accordance
with the purposes of the [ESA]'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
This proposed rule includes appropriate provisions that are
necessary and advisable to provide for the conservation of the African
elephant, while also including appropriate prohibitions from Section
9(a)(1) of the ESA. The primary threat to the African elephant is
poaching of elephants for their tusks and the associated illegal trade
in both raw and worked ivory. To restrict this illegal trade, the
proposed provisions under this rule prohibit the import of African
elephant ivory, with certain narrow exceptions, restrict the import of
sport-hunted trophies, and prohibit the export of raw ivory. The rule
provides two exceptions from the prohibition on import of ivory that
would directly benefit law enforcement efforts that involve African
elephants and science that would contribute to the conservation of the
species. The rule provides three additional exceptions, which apply to
the noncommercial import or export of worked ivory only, for qualifying
musical instruments, items in a traveling exhibition, inherited items,
and items that are part of a household move. Any worked ivory imported
or exported under these
[[Page 45173]]
exceptions would need to meet strict criteria under both CITES and this
rule, resulting in restrictions that safeguard against import or export
of ivory that could contribute to the illegal trade in ivory or pose a
risk to elephant populations. The import and export of ivory is also
subject to applicable restrictions under the AfECA, except to the
extent allowed under Director's Order No. 210, as amended on May 15,
2014. Our information indicates that these strict controls on the
import and export of African elephant ivory will help to ensure that
U.S. participation in the ivory trade will not contribute to the
illegal killing of elephants.
For the same reasons that the import and export of raw and worked
ivory need to be carefully regulated, the import and export of African
elephant sport-hunted trophies must be regulated in a manner that would
ensure that the import and export does not contribute to the illegal
trade of ivory. The proposed rule would require that the import of all
sport-hunted trophies, regardless of the CITES status of the source
population, be authorized through the issuance of a threatened species
permit under 50 CFR 17.32. Authorizing importation through threatened
species enhancement permits would allow us to more carefully evaluate
trophy imports in accordance with legal requirements and the
conservation needs of the species. The limitation of two trophies per
hunter per year would ensure that the importation of African elephant
trophies is actually the result of personal, noncommercial sport
hunting and would prevent the importation of commercial quantities of
ivory.
Perhaps the biggest change from the current 4(d) rule would be new
restrictions on the commercialization of ivory in interstate and
foreign commerce. The proposed rule would prohibit the sale or offer
for sale of ivory and sport-hunted trophies in interstate or foreign
commerce and the delivery, receipt, carrying, transport, or shipment of
ivory and sport-hunted trophies in interstate or foreign commerce in
the course of a commercial activity. Exceptions would be available for
qualifying antiques and for certain items manufactured before the date
of the final rule for this rulemaking that contain less than 200 grams
of ivory and meet other conditions, while certain commercial activities
could also be authorized through a threatened species permit under 50
CFR 17.32. However, the de minimis exception and threatened species
permits would not be available for sport-hunted trophies and ivory
items that were imported as part of a household move or inheritance. We
have determined that items meeting the de minimis exception, including
the requirements that the ivory be a fixed component of a larger
manufactured item, that the ivory is not raw, that the ivory is not the
primary source of value of the item, that the total weight of the ivory
is less than 200 grams, and that the manufactured item is not made
wholly or primarily of ivory, would minimize the possibility of the
ivory contributing to either the global or U.S. markets in illegal
ivory.
The proposed rule, however, would continue to allow certain
activities that pose no risk to African elephants. Live elephants and
elephant parts or products other than ivory and sport-hunted trophies
could continue to be imported into or exported from the United States,
sold or offered for sale in interstate or foreign commerce, and
delivered, received, carried, transported, or shipped in interstate or
foreign commerce in the course of a commercial activity, provided all
other requirements under CITES and the Service's general import/export
regulations were met. CITES requirements, including findings that must
be made before documents can be issued, would continue to ensure that
all import and export of live animals and parts or products other than
ivory and sport-hunted trophies remain legal and non-detrimental to the
survival of the species. There is no information that indicates that
import, export, or commercialization of live elephants or non-ivory
parts and products as currently regulated under CITES has any negative
effect on African elephants or is contributing in any way to the
current crisis involving the killing of elephants for their ivory. The
new restriction on the taking of live elephants held in captivity
within the United States or during transport would help to ensure that
animals in captivity receive an appropriate standard of care.
In addition to this proposed rule being necessary and advisable to
provide for the conservation of the species and including appropriate
prohibitions from section 9(a)(1) of the ESA, it also is consistent
with other efforts to improve elephant conservation. With this rule,
the United States would ensure that we have in place comprehensive
internal regulatory and enforcement measures to regulate domestic trade
in raw and worked ivory, as called for at the 16th meeting of the
Conference of the Parties to CITES in March 2013 (see Resolution Conf.
10.10 (Rev. CoP16)). More broadly, the proposed rule would respond to
the President's Executive Order of July 1, 2013, calling for all
Federal agencies to take action to combat wildlife trafficking in all
wildlife and to reduce demand for illegally traded wildlife, both at
home and abroad. All of the proposed revisions to the African elephant
4(d) rule would allow us to better regulate the U.S. domestic market
and U.S. participation in the global market for African elephant ivory,
which we believe will lead to a reduction of the illegal killing of
elephants for their ivory.
Table 1--How Would Proposed Changes to the African Elephant 4(d) Rule
Affect Trade in African Elephant Ivory?
[This table is only for guidance on proposed revisions to the existing
Endangered Species Act 4(d) rule for the African elephant. Please see
the proposed rule text for details. All imports and exports must be
accompanied by appropriate CITES documents and meet other FWS import/
export requirements]
------------------------------------------------------------------------
What activities are
currently allowed/ What are the
prohibited? proposed changes?
------------------------------------------------------------------------
In 2014, the Service This column
revised Director's describes the
Order No. 210 contents of the
(effective May 15, proposed rule in
2014) and U.S. general terms.
CITES implementing Please refer to the
regulations [50 CFR proposed rule text
part 23] (effective for details. These
June 26, 2014). provisions will not
Both of these go into effect
actions created new until we have
rules for trade in considered input
elephant ivory. received during the
public comment
period and
published a final
rule in the Federal
Register.
Import...................... Commercial Commercial
What's allowed:..... The proposed rule
No does not include
commercial imports any changes for
allowed. commercial imports.
[[Page 45174]]
Noncommercial Noncommercial
What's allowed:..... The proposed rule
Sport- includes the
hunted trophies (no following changes
limit). for noncommercial
Law imports:
enforcement and Limits
bona fide sport-hunted
scientific trophies to two per
specimens. hunter per year.
Worked Removes the
elephant ivory that requirement that
was legally worked elephant
acquired and ivory has not been
removed from the sold since February
wild prior to 25, 2014. All other
February 26, 1976 requirements for
and has not been worked elephant
sold since February ivory (listed in
25, 2014 and is the previous
either:. column) must be
[cir] Part of a met.
household move or
inheritance (see
Director's Order
No. 210 for
details);.
[cir] Part of a
musical instrument
(see Director's
Order No. 210 for
details); or.
[cir] Part of a
traveling
exhibition (see
Director's Order
No. 210 for
details)..
What's prohibited:..
Worked
ivory that does not
meet the conditions
described above..
Raw ivory
(except for sport-
hunted trophies)..
Export...................... Commercial.......... Commercial
What's allowed:..... The proposed rule
CITES pre- would further
Convention worked restrict commercial
ivory, including exports to only
antiques.. those items that
What's prohibited:.. meet the criteria
Raw ivory.. of the ESA antiques
exemption.*
Raw ivory remains
prohibited
regardless of age.
Noncommercial....... Noncommercial
What's allowed:..... The proposed rule
Worked would further
ivory. restrict
What's prohibited:.. noncommercial
Raw ivory.. exports to the
following
categories:
Only those
items that meet the
criteria of the ESA
antiques
exemption.*
Worked
elephant ivory that
was legally
acquired and
removed from the
wild prior to
February 26, 1976,
and is either:
[cir] Part of a
household move or
inheritance;
[cir] Part of a
musical instrument;
or
[cir] Part of a
traveling
exhibition.
Worked
ivory that
qualifies as pre-
Act
Law
enforcement and
bona fide
scientific
specimens.
Raw ivory remains
prohibited
regardless of age.
Foreign commerce............ There are no The proposed rule
restrictions on includes the
foreign commerce. following changes
for foreign
commerce:
Restricts
foreign commerce
to:
[cir] items that
meet the criteria
of the ESA antiques
exemption,* and
[cir] certain
manufactured items
that contain a
small (de minimis)
amount of ivory.
Prohibits
foreign commerce
in:
[cir] sport-hunted
trophies, and
[cir] ivory imported/
exported as part of
a household move or
inheritance.
Sales across state lines What's allowed:..... The proposed rule
[dagger] (interstate Ivory includes the
commerce). lawfully imported following changes
prior to the date for interstate
the African commerce:
elephant was listed Further
in CITES Appendix I restricts
(January 18, 1990)-- interstate commerce
[seller must to only:
demonstrate].. [cir] items that
Ivory meet the criteria
imported under a of the ESA antiques
CITES pre- exemption,* and
Convention [cir] certain
certificate--[selle manufactured items
r must that contain a
demonstrate].. small (de minimis)
amount of ivory.**
Prohibits
interstate commerce
in:
[cir] ivory imported
under the
exceptions for
household move or
inheritance, or for
law enforcement or
genuine scientific
purposes, and
[cir] sport-hunted
trophies.
[[Page 45175]]
Sales within a state What's allowed: The proposed rule
(intrastate commerce). Ivory does not include
lawfully imported any changes for
prior to the date intrastate
the African commerce.
elephant was listed
in CITES Appendix I
(January 18, 1990)--
[seller must
demonstrate]..
Ivory
imported under a
CITES pre-
Convention
certificate--[selle
r must
demonstrate]..
Noncommercial movement Noncommercial use, The proposed rule
[dagger] within the United including does not include
States. interstate and any changes for
intrastate movement noncommercial
within the United movement within the
States, of legally United States.
acquired ivory is
allowed.
Personal possession......... Possession and The proposed rule
noncommercial use does not include
of legally acquired any changes for
ivory is allowed. personal
possession.
------------------------------------------------------------------------
[dagger] See preamble discussion in the section titled Interstate and
foreign commerce.
* To qualify for the ESA antique exemption an item must meet all of the
following criteria [seller/importer/exporter must demonstrate]:
A. It is 100 years or older.
B. It is composed in whole or in part of an ESA-listed species;
C. It has not been repaired or modified with any such species after
December 27, 1973; and
D. It is being or was imported through an endangered species ``antique
port.''
Under Director's Order No. 210, as a matter of enforcement discretion,
items imported prior to September 22, 1982, and items created in the
United States and never imported must comply with elements A, B, and C
above, but not element D.
** To qualify for the de minimis exception, manufactured items must meet
all of the following criteria:
(i) If the item is located within the United States, the ivory was
imported into the United States prior to January 18, 1990, or was
imported into the United States under a Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES) pre-
Convention certificate with no limitation on its commercial use;
(ii) If the item is located outside the United States, the ivory was
removed from the wild prior to February 26, 1976;
(iii) The ivory is a fixed component or components of a larger
manufactured item and is not in its current form the primary source of
the value of the item;
(iv) The ivory is not raw;
(v) The manufactured item is not made wholly or primarily of ivory;
(vi) The total weight of the ivory component or components is less than
200 grams; and
(vii) The item was manufactured before the effective date of the final
rule].
For a discussion of the de minimis exception see the section of the
preamble titled Interstate and foreign commerce; for details of the de
minimis exception see paragraph (e)(3) in the rule text at the end of
this document.
Required Determinations
Regulatory Planning and Review: Executive Order 12866 provides that
the Office of Information and Regulatory Affairs in the Office of
Management and Budget will review all significant rules. The Office of
Information and Regulatory Affairs has determined that this rule is
significant because it may raise novel legal or policy issues.
Executive Order 13563 reaffirms the principles of Executive Order 12866
while calling for improvements in the Nation's regulatory system to
promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The Executive Order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. E.O. 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this rule in a manner
consistent with these requirements.
A brief assessment to identify the economic costs and benefits
associated with this proposed rule follows. The Service has prepared an
economic analysis, as part of our review under the National
Environmental Policy Act (NEPA), which we will make available for
review and comment (see the paragraph in this Required Determinations
section on the National Environmental Policy Act). The proposed rule
would revise the 4(d) rule, which regulates trade of African elephants
(Loxodonta africana), including African elephant parts and products. We
are proposing to revise the 4(d) rule to more strictly control U.S.
trade in African elephant ivory. Revision of the 4(d) rule as proposed
would mean that African elephants are subject to some of the standard
provisions for species classified as threatened under the ESA. This
means that the taking of live elephants and (with certain exceptions)
import, export, and commercial activities in interstate or foreign
commerce of African elephant parts and products containing ivory would
generally be prohibited without a permit issued under 50 CFR 17.32 for
``Scientific purposes, or the enhancement of propagation or survival,
or economic hardship, or zoological exhibition, or educational
purposes, or incidental taking, or special purposes consistent with the
purposes of the [ESA].'' There are specific exceptions for certain
activities with specimens containing de minimis quantities of ivory;
ivory items that meet certain requirements for musical instruments,
traveling exhibitions, inherited items, and items that are part of a
household move; ivory imported or exported for scientific purposes or
law enforcement; certain live elephants; and ivory items that qualify
as ``pre-Act'' or as antiques under the ESA.
This rule would regulate only African elephants and African
elephant ivory. Asian elephants and parts or products from Asian
elephants, including ivory, are regulated separately under the ESA.
Ivory from other species such as walrus is also regulated separately
under the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.). Ivory
from extinct species such as mammoths is not
[[Page 45176]]
regulated under statutes implemented by the Service.
Impacted markets include those involving U.S. citizens or other
persons subject to the jurisdiction of the United States that buy,
sell, or otherwise commercialize African elephant ivory products across
State lines and those that buy, sell, or otherwise commercialize such
specimens in international trade. Examples of products in trade
containing African elephant ivory include cue sticks, pool balls, knife
handles, gun grips, furniture inlay, jewelry, artwork, and musical
instrument parts.
The market for African elephant products, including ivory, is not
large enough to have major data collections or reporting requirements,
which results in a limited amount of available data for economic
analysis. Some import and export data are available from the Service's
Office of Law Enforcement and Division of Management Authority, and
from reports produced by other organizations. On the whole, the
available data provide a general overview of the African elephant ivory
market. Using this information, we can make reasonable assumptions to
approximate the potential economic impact of revision of the 4(d) rule
for the African elephant. With this proposed rule, we solicit public
input on impacts to sales, percentage of revenue impacted, and the
number of businesses affected, particularly with regard to interstate
and foreign commerce, for which we have the least amount of
information, to help quantify these costs and benefits. Please see the
Public Comments section at the end of SUPPLEMENTARY INFORMATION for
further information about submitting comments.
Imports. There has been a moratorium on the import of African
elephant ivory other than sport-hunted trophies, established under the
AfECA and in place since 1989. In recent years, the Service has
allowed, as a matter of law enforcement discretion, the import of
certain antique African elephant ivory. Director's Order No. 210,
issued in February 2014, clarified that we will no longer allow any
commercial import of African elephant ivory, regardless of its age. We
are proposing to reflect this provision of Director's Order No. 210 in
the 4(d) rule (except for antiques, which are exempt from this 4(d)
rule, but remain subject to the AfECA moratorium). Import of live
African elephants and non-ivory African elephant parts and products
would continue to be allowed under the proposed revisions, provided the
requirements at 50 CFR parts 13, 14, and 23 are met. Import of African
elephant sport-hunted trophies would be limited to two trophies per
hunter per year. This may impact about seven hunters, representing
about 3 percent to 4 percent of hunters, annually.
Exports. Under the current 4(d) rule, raw ivory may not be exported
from the United States for commercial purposes under any circumstances.
In addition, export of raw ivory from the United States is prohibited
under the AfECA. Therefore, the revisions to the 4(d) rule would have
no impact on exports of raw ivory. Revision of the 4(d) rule as
proposed would mean that export of worked African elephant ivory would
be prohibited without an ESA permit issued under 50 CFR 17.32, except
for specimens that qualify as ``pre-Act'' or as ESA antiques and
certain musical instruments; items in a traveling exhibition; items
that are part of a household move or inheritance; items exported for
scientific purposes; and items exported for law enforcement purposes
that meet specific conditions and, therefore, may be exported without
an ESA permit. Export of live African elephants and non-ivory products
made from African elephants would continue to be allowed provided the
requirements at 50 CFR parts 13, 14, and 23 are met.
From 2007 to 2011, the total declared value of worked African
elephant ivory exported from the United States varied widely from $32.1
million to $175.7 million. The declared value of items containing
African elephant ivory that were less than 100 years old (and,
therefore, could not qualify as ESA antiques) ranged from $607,000 to
$3.7 million annually during the same time period. As this rule would
no longer permit the commercial export of non-antique ivory, we expect
based on the information currently available that, on average,
commercial export of worked ivory would decrease by about 2 percent
annually.
Domestic and Foreign Commerce. The proposed rule would prohibit
certain commercial activities such as sale in interstate or foreign
commerce of African elephant ivory and delivery, receipt, carrying,
transport, or shipment of ivory in interstate or foreign commerce in
the course of a commercial activity (except for qualifying ESA antiques
and certain manufactured items containing de minimis amounts of ivory)
without an ESA permit issued under 50 CFR 17.32. Otherwise, commercial
activities in interstate and foreign commerce with live African
elephants and African elephant parts and products other than ivory
would continue to be allowed under the proposed revisions to the 4(d)
rule. While revisions to the 4(d) rule would generally result in
prohibitions on sale or offer for sale in interstate or foreign
commerce as well as prohibitions on delivery, receipt, carrying,
transport, or shipment in interstate or foreign commerce in the course
of a commercial activity of both raw and worked African elephant ivory,
it would not have an impact on intrastate commerce. Businesses would
not be prohibited by the 4(d) rule from selling raw or worked ivory
within the State in which they are located. (There are, however,
restrictions under our CITES regulations at 50 CFR 23.55 for intrastate
sale of elephant ivory.) As noted earlier, available data provide only
a general overview of the African elephant ivory market. Assuming that
the domestic market is similar to the export market, then non-antique
worked ivory domestic sales would also decrease about 2 percent
annually under the proposed rule. We request information from the
public about the potential impact to the domestic market. Because we
are proposing to allow domestic and foreign commerce commercial
activities with certain items containing de minimis amounts of ivory,
and many of these items would be precluded from export, it is possible
that an even smaller percentage of the domestic market would be
impacted compared to the export market. Certain commercial activities
such as sale in interstate or foreign commerce with raw ivory and non-
antique worked ivory, with the exception of those items containing de
minimis amounts of worked ivory mentioned above, would no longer be
permitted.
Revising the 4(d) rule for African elephant, as proposed here,
would improve domestic regulation of the U.S. market as well as foreign
markets where commercial activities involving elephant ivory are
conducted by U.S. citizens and facilitate enforcement efforts within
the United States. We are proposing to take this action to increase
protection for African elephants in response to the alarming rise in
poaching of African elephants, which is fueling the rapidly expanding
illegal trade in ivory. As noted in the preamble to this proposed rule,
the United States continues to play a role as a destination and transit
country for illegally traded elephant ivory. Increased control of the
U.S. domestic market and foreign markets where commercial activities
involving elephant ivory are conducted by U.S. citizens would benefit
the conservation of the African elephant.
Regulatory Flexibility Act: Under the Regulatory Flexibility Act
(as amended by the Small Business Regulatory
[[Page 45177]]
Enforcement Fairness Act (SBREFA) of 1996), whenever a Federal agency
is required to publish a notice of rulemaking for any proposed or final
rule, it must prepare and make available for public comment a
regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small government jurisdictions) (5 U.S.C. 601 et seq.). However, no
regulatory flexibility analysis is required if the head of an agency
certifies that the rule would not have a significant economic impact on
a substantial number of small entities. Thus, for a regulatory
flexibility analysis to be required, impacts must exceed a threshold
for ``significant impact'' and a threshold for a ``substantial number
of small entities.'' See 5 U.S.C. 605(b). SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule would not have a
significant economic impact on a substantial number of small entities.
The U.S. Small Business Administration (SBA) defines a small
business as one with annual revenue or employment that meets or is
below an established size standard. To assess the effects of the rule
on small entities, we focus on businesses that buy or sell elephant
ivory. Businesses produce a variety of products from elephant ivory
including cue sticks, pool balls, knife handles, gun grips, furniture
inlay, jewelry, and instrument parts. Depending on the type of product
produced, these businesses could be included in a number of different
industries, including (1) Musical Instrument Manufacturing (North
American Industry Classification System (NAICS) 339992), where small
businesses have less than $10.0 million revenue; (2) Sporting and
Recreational Goods and Supplies Merchant Wholesalers (NAICS 423910),
where small businesses have fewer than 100 employees; (3) All Other
Miscellaneous Wood Product Manufacturing (NAICS 321999), where small
businesses have fewer than 500 employees; (4) Metal Kitchen Cookware,
Utensil, Cutlery, and Flatware (except Precious) Manufacturing (NAICS
332215), where small businesses have fewer than 500 employees; (5)
Jewelry and Silverware Manufacturing, (NAICS 339910), where small
businesses have fewer than 500 employees; (6) Used Merchandise Stores
(NAICS 453310), where small businesses have less than $7.5 million in
revenue; and (7) Art Dealers (NAICS 453920), where small businesses
have less than $7.5 million in revenue. Table 2 describes the number of
businesses within each industry and the estimated percentage of small
businesses. The U.S. Economic Census does not capture the detail
necessary to determine the number of small businesses that are engaged
in commerce with African elephant ivory products within these
industries. Based on the distribution of small businesses with these
industries as shown in Table 2, we expect that the majority of the
entities involved with trade in African elephant ivory would be
considered small as defined by the SBA.
Table 2--Distribution of Businesses Within Affected Industries
----------------------------------------------------------------------------------------------------------------
Percentage of
NAICS Code Description Number of small
businesses businesses
----------------------------------------------------------------------------------------------------------------
339992..................................... Musical instrument manufacturing... 597 73
423910..................................... Sporting and recreational goods and 5,953 97
supplies merchant wholesalers.
321999..................................... All other miscellaneous wood 1,763 100
product manufacturing.
332215..................................... Metal kitchen cookware, utensil, 188 99
cutlery, and flatware (except
precious) manufacturing.
339910..................................... Jewelry and silverware 2,119 100
manufacturing.
453310..................................... Used merchandise stores............ 19,793 74
453920..................................... Art dealers........................ 4,937 95
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau, 2012 County Business Patterns.
The impact on individual businesses is dependent on the percentage
of interstate and export sales that involve non-antique African
elephant ivory that would not fall under the de minimis exception. That
is, the impact depends on where businesses are located, where their
customers are located, and the kinds of items containing ivory that
they sell. Information on business profiles to determine the percent of
revenues affected by the rule is currently unavailable. Overall, we
estimate that worked ivory exports would decrease about $2.1 million
annually, which represents about 2 percent of the total declared value
of worked ivory exported from 2007 to 2011. We also expect that
domestic sales would decrease by about 2 percent annually. Because we
are proposing to allow domestic commercial activities with certain
items containing de minimis amounts of ivory, and many of these items
would be precluded from export, it is possible that an even smaller
percentage of the domestic market would be impacted compared to the
export market.
Based on the available information, we do not expect these changes
to have a substantial impact on small entities within the five affected
industries listed above. We, therefore, certify that this proposed rule
would not have a significant economic effect on a substantial number of
small entities as defined under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). A Regulatory Flexibility Analysis is not required.
Accordingly, a Small Entity Compliance Guide is not required.
This proposed rule would create no substantial fee or paperwork
changes in the permitting process. The regulatory changes would require
issuance of ESA permits for import of sport-hunted African elephant
trophies. We estimate that we would issue 300 ESA permits per year for
these sport-hunted trophies, with a fee of $100 per permit. These
changes are not major in scope and would create only a modest financial
or paperwork burden on the affected members of the general public. The
authority to regulate activities involving ESA-listed species already
exists under the ESA and is carried out through regulations contained
in 50 CFR part 17.
Small Business Regulatory Enforcement Fairness Act: This proposed
rule is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. This rule:
a. Would not have an annual effect on the economy of $100 million
or more. This proposed rule revises the 4(d) rule for African elephant,
which makes the African elephant subject to the same of the provisions
applied to other threatened species not covered by a 4(d)
[[Page 45178]]
rule, with certain exceptions. This proposed rule would not have a
negative effect on this part of the economy. It would affect all
importers, exporters, re-exporters, and domestic and certain traders in
foreign commerce of African elephant ivory equally, and the impacts
would be evenly spread among all businesses, whether large or small.
There is not a disproportionate impact for small or large businesses.
b. Would not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, tribal, or local
government agencies; or geographic regions.
c. Would not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act: Under the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.):
a. This proposed rule would not significantly or uniquely affect
small governments. A Small Government Agency Plan is not required. The
proposed rule imposes no unfunded mandates. Therefore, this proposed
rule would have no effect on small governments' responsibilities.
b. This proposed rule would not produce a Federal requirement of
$100 million or greater in any year and is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
Takings: Under Executive Order 12630, this proposed rule does not
have significant takings implications. While certain activities that
were previously unregulated would now be regulated, possession and
other activities with African elephant ivory such as sale in intrastate
commerce would remain unregulated. A takings implication assessment is
not required.
Federalism: These proposed revisions to part 17 do not contain
significant Federalism implications. A federalism summary impact
statement under Executive Order 13132 is not required.
Civil Justice Reform: Under Executive Order 12988, the Office of
the Solicitor has determined that this proposed rule does not unduly
burden the judicial system and meets the requirements of sections 3(a)
and 3(b)(2) of the Order.
Paperwork Reduction Act: This proposed rule does not contain new
collections of information that require approval by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). OMB has reviewed and approved the information
collection requirements associated with applications and reporting for
CITES and ESA permits and assigned OMB Control No. 1018-0093, which
expires May 31, 2017. We may not conduct or sponsor and you are not
required to respond to a collection of information unless it displays a
currently valid OMB control number.
National Environmental Policy Act (NEPA): This proposed rule is
being analyzed under the criteria of the National Environmental Policy
Act, the Department of the Interior procedures for compliance with NEPA
(Departmental Manual (DM) and 43 CFR part 46), and Council on
Environmental Quality regulations for implementing the procedural
provisions of NEPA (40 CFR parts 1500-1508). We have prepared a draft
environmental assessment to determine whether this rule will have a
significant impact on the quality of the human environment under the
National Environmental Policy Act of 1969. The draft environmental
assessment is available online at http://www.regulations.gov at Docket
Number FWS-HQ-IA-2013-0091.
Government-to-Government Relationship with Tribes: The Department
of the Interior strives to strengthen its government-to-government
relationship with Indian tribes through a commitment to consultation
with Indian tribes and recognition of their right to self-governance
and tribal sovereignty. We have evaluated this rule under the
Department's consultation policy and under the criteria in Executive
Order 13175 and have determined that it has no substantial direct
effects on federally recognized Indian tribes and that consultation
under the Department's tribal consultation policy is not required.
Individual tribal members must meet the same regulatory requirements as
other individuals who trade in African elephants, including African
elephant parts and products.
Energy Supply, Distribution, or Use: Executive Order 13211 pertains
to regulations that significantly affect energy supply, distribution,
or use. This proposed rule would revise the current regulations in 50
CFR part 17 regarding trade in African elephants and African elephant
parts and products. This proposed rule would not significantly affect
energy supplies, distribution, and use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Clarity of the Rule: We are required by Executive Orders 12866 and
12988 and by the Presidential Memorandum of June 1, 1998, to write all
rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, please send us
comments by one of the methods listed under ADDRESSES. To better help
us revise the rule, your comments should be as specific as possible.
For example, you should tell us the numbers of the sections or
paragraphs that are unclearly written, which sections or sentences are
too long, the sections where you feel lists or tables would be useful,
etc.
Public Comments
We are seeking comments on the impact of the provisions in this
proposed rule on the affected public. You may submit your comments and
materials concerning this proposed rule by one of the methods listed
under ADDRESSES. We will not accept comments sent by email or fax or to
an address not listed under ADDRESSES.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you provide
personal identifying information in your written comments, you may
request at the top of your document that we withhold this information
from public review. However, we cannot guarantee that we will be able
to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, between 8 a.m. and 4 p.m., Monday through Friday, except
Federal holidays, at the U.S. Fish and Wildlife Service; Division of
Management Authority; 5275 Leesburg Pike; Falls Church, VA 22041;
telephone, (703) 358-2093.
References Cited
A list of references cited is available online at http://www.regulations.gov at Docket Number FWS-HQ-IA-2013-0091.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
For the reasons given in the preamble, we propose to amend title
50, chapter I,
[[Page 45179]]
subchapter B of the Code of Federal Regulations as follows:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Section 17.40 is amended by revising paragraph (e) to read as
follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(e) African elephant (Loxodonta africana). This paragraph (e)
applies to any specimen of the species Loxodonta africana whether live
or dead, including any part or product thereof. Except as provided in
paragraphs (e)(2) through (9) of this section, all of the prohibitions
and exceptions in Sec. Sec. 17.31 and 17.32 apply to the African
elephant. Persons seeking to benefit from the exceptions provided in
this paragraph (e) must demonstrate that they meet the criteria to
qualify for the exceptions.
(1) Definitions. In this paragraph (e), antique means any item that
meets all four criteria under section 10(h) of the Endangered Species
Act (16 U.S.C. 1539(h)). Ivory means any African elephant tusk and any
piece of an African elephant tusk. Raw ivory means any African elephant
tusk, and any piece thereof, the surface of which, polished or
unpolished, is unaltered or minimally carved. Worked ivory means any
African elephant tusk, and any piece thereof, that is not raw ivory.
(2) Live animals and parts and products other than ivory and sport-
hunted trophies. Live African elephants and African elephant parts and
products other than ivory and sport-hunted trophies may be imported
into or exported from the United States; sold or offered for sale in
interstate or foreign commerce; and delivered, received, carried,
transported, or shipped in interstate or foreign commerce in the course
of a commercial activity without a threatened species permit issued
under Sec. 17.32, provided the requirements in 50 CFR parts 13, 14,
and 23 have been met.
(3) Interstate and foreign commerce of ivory. Except for antiques
and certain manufactured items containing de minimis quantities of
ivory, sale or offer for sale of ivory in interstate or foreign
commerce and delivery, receipt, carrying, transport, or shipment of
ivory in interstate or foreign commerce in the course of a commercial
activity is prohibited. Except as provided in paragraphs (e)(5)(iii)
and (e)(6) through (8) of this section, manufactured items containing
de minimis quantities of ivory may be sold or offered for sale in
interstate or foreign commerce and delivered, received, carried,
transported, or shipped in interstate or foreign commerce in the course
of a commercial activity without a threatened species permit issued
under Sec. 17.32, provided they meet all of the following criteria:
(i) If the item is located within the United States, the ivory was
imported into the United States prior to January 18, 1990, or was
imported into the United States under a Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES) pre-
Convention certificate with no limitation on its commercial use;
(ii) If the item is located outside the United States, the ivory
was removed from the wild prior to February 26, 1976;
(iii) The ivory is a fixed component or components of a larger
manufactured item and is not in its current form the primary source of
the value of the item;
(iv) The ivory is not raw;
(v) The manufactured item is not made wholly or primarily of ivory;
(vi) The total weight of the ivory component or components is less
than 200 grams; and
(vii) The item was manufactured before [EFFECTIVE DATE OF THE FINAL
RULE].
(4) Import/export of raw ivory. Except as provided in paragraphs
(e)(6) through (9) of this section, raw ivory may not be imported into
or exported from the United States.
(5) Import/export of worked ivory. Except as provided in paragraphs
(e)(6) through (9) of this section, worked ivory may not be imported
into or exported from the United States unless it is contained in a
musical instrument, or is part of a traveling exhibition, household
move, or inheritance, and meets the following criteria:
(i) Musical instrument. Musical instruments that contain worked
ivory may be imported into and exported from the United States without
a threatened species permit issued under Sec. 17.32 provided:
(A) The ivory was legally acquired prior to February 26, 1976;
(B) The instrument containing worked ivory is accompanied by a
valid CITES musical instrument certificate or equivalent CITES
document;
(C) The instrument is securely marked or uniquely identified so
that authorities can verify that the certificate corresponds to the
musical instrument in question; and
(D) The instrument is not sold, traded, or otherwise disposed of
while outside the certificate holder's country of usual residence.
(ii) Traveling exhibition. Worked ivory that is part of a traveling
exhibition may be imported into and exported from the United States
without a threatened species permit issued under Sec. 17.32 provided:
(A) The ivory was legally acquired prior to February 26, 1976;
(B) The item containing worked ivory is accompanied by a valid
CITES traveling exhibition certificate (See the requirements for
traveling exhibition certificates at 50 CFR 23.49);
(C) The item containing ivory is securely marked or uniquely
identified so that authorities can verify that the certificate
corresponds to the item in question; and
(D) The item containing worked ivory is not sold, traded, or
otherwise disposed of while outside the certificate holder's country of
usual residence.
(iii) Household move or inheritance. Worked ivory may be imported
into or exported from the United States without a threatened species
permit issued under Sec. 17.32 for personal use as part of a household
move or as part of an inheritance if the ivory was legally acquired
prior to February 26, 1976, and the item is accompanied by a valid
CITES pre-Convention certificate. It is unlawful to sell or offer for
sale in interstate or foreign commerce or to deliver, receive, carry,
transport, or ship in interstate or foreign commerce and in the course
of a commercial activity any African elephant ivory imported into the
United States as part of a household move or inheritance. The exception
in paragraph (e)(3) of this section regarding manufactured items
containing de minimis quantities of ivory does not apply to items
imported or exported under this paragraph (e)(5)(iii) as part of a
household move or inheritance.
(6) Sport-hunted trophies. (i) African elephant sport-hunted
trophies may be imported into the United States provided:
(A) The trophy was legally taken in an African elephant range
country that declared an ivory export quota to the CITES Secretariat
for the year in which the trophy animal was killed;
(B) A determination is made that the killing of the trophy animal
will enhance the survival of the species and the trophy is accompanied
by a threatened species permit issued under Sec. 17.32;
(C) The trophy is legibly marked in accordance with 50 CFR part 23;
(D) The requirements in 50 CFR parts 13, 14, and 23 have been met;
and
(E) No more than two African elephant sport-hunted trophies are
[[Page 45180]]
imported by any hunter in a calendar year.
(ii) It is unlawful to sell or offer for sale in interstate or
foreign commerce or to deliver, receive, carry, transport, or ship in
interstate or foreign commerce and in the course of a commercial
activity any sport-hunted African elephant trophy. The exception in
paragraph (e)(3) of this section regarding manufactured items
containing de minimis quantities of ivory does not apply to ivory
imported or exported under this paragraph (e)(6) as part of a sport-
hunted trophy.
(iii) Except as provided in paragraph (e)(9) of this section, raw
ivory that was imported as part of a sport-hunted trophy may not be
exported from the United States. Except as provided in paragraphs
(e)(5), (7), (8), and (9) of this section, worked ivory imported as a
sport-hunted trophy may not be exported from the United States. Parts
of a sport-hunted trophy other than ivory may be exported from the
United States without a threatened species permit issued under Sec.
17.32 of this part, provided the requirements of 50 CFR parts 13, 14,
and 23 have been met.
(7) Import/export of ivory for law enforcement purposes. Raw or
worked ivory may be imported into and worked ivory may be exported from
the United States by an employee or agent of a Federal, State, or
tribal government agency for law enforcement purposes, without a
threatened species permit issued under Sec. 17.32, provided the
requirements of 50 CFR parts 13, 14, and 23 have been met. It is
unlawful to sell or offer for sale in interstate or foreign commerce
and to deliver, receive, carry, transport, or ship in interstate or
foreign commerce and in the course of a commercial activity any African
elephant ivory that was imported into or exported from the United
States for law enforcement purposes. The exception in paragraph (e)(3)
of this section regarding manufactured items containing de minimis
quantities of ivory does not apply to ivory imported or exported under
this paragraph (e)(7) for law enforcement purposes.
(8) Import/export of ivory for genuine scientific purposes. (i) Raw
or worked ivory may be imported into and worked ivory may be exported
from the United States for genuine scientific purposes that will
contribute to the conservation of the African elephant, provided:
(A) It is accompanied by a threatened species permit issued under
Sec. 17.32; and
(B) The requirements of 50 CFR parts 13, 14, and 23 have been met.
(ii) It is unlawful to sell or offer for sale in interstate or
foreign commerce and to deliver, receive, carry, transport, or ship in
interstate or foreign commerce and in the course of a commercial
activity any African elephant ivory that was imported into or exported
from the United States for genuine scientific purposes. The exception
in paragraph (e)(3) of this section regarding manufactured items
containing de minimis quantities of ivory does not apply to ivory
imported or exported under this paragraph (e)(8) for genuine scientific
purposes.
(9) Antique ivory. Antiques (as defined in paragraph (e)(1) of this
section) are not subject to the provisions of this rule. Antiques
containing or consisting of ivory may therefore be imported into or
exported from the United States without a threatened species permit
issued under Sec. 17.32, provided the requirements of 50 CFR parts 13,
14, and 23 have been met. Also, the provisions and prohibitions under
the African Elephant Conservation Act (16 U.S.C. 4201 et. seq.) apply,
regardless of the age of the item. Antiques that consist of or contain
raw or worked ivory may similarly be sold or offered for sale in
interstate or foreign commerce and delivered, received, carried,
transported, or shipped in interstate or foreign commerce in the course
of a commercial activity without a threatened species permit issued
under Sec. 17.32.
* * * * *
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-18487 Filed 7-27-15; 8:45 am]
BILLING CODE 4310-55-P