[Federal Register Volume 78, Number 176 (Wednesday, September 11, 2013)]
[Rules and Regulations]
[Pages 55649-55656]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22132]



Fish and Wildlife Service

50 CFR Part 17

[Docket Number FWS-HQ-ES-2013-0055; FXES111809F2070B6]
RIN 1018-AY76

Endangered and Threatened Wildlife and Plants; Listing the 
Southern White Rhino (Ceratotherium simum simum) as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Interim rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
determine to list the southern white rhino (Ceratotherium simum simum) 
as threatened under the authority of section 4(e) of the Endangered 
Species Act of 1973, as amended (Act), due to the similarity in 
appearance with the endangered Javan (Rhinoceros sondaicus), Sumatran 
(Dicerorhinos sumatrensis), Indian (Rhinoceros unicornis), black 
(Diceros bicornis) and northern white rhino (Ceratotherium simum 
cottoni). Differentiating between the horns and other products made 
from the southern white rhino and the endangered Javan, Sumatran, 
Indian, black, and northern white rhino is difficult for law 
enforcement, decreasing their ability to enforce and further the 
provisions and policies of the Act. This similarity of appearance has 
resulted in the documented trade of listed rhinoceros species, often 
under the guise of being the unprotected southern white rhinoceros, and 
this difficulty in distinguishing between the rhino species protected 
under the Act and the southern white rhino constitutes an additional 
threat to all endangered rhinoceros species. The determination that the 
southern white rhino should be treated as threatened due to similarity 
of appearance will substantially facilitate law enforcement actions to 
protect and conserve all endangered rhino species.

DATES: This rule becomes effective on September 11, 2013. We will 
accept comments received or postmarked on or before October 11, 2013. 
The reasons for

[[Page 55650]]

this accelerated implementation and for making this rule effective less 
than 30 days after publication in the Federal Register are described 
below in the section titled ``Need for Interim Rule.''

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow instructions for submitting comments to Docket No. FWS-HQ-ES-
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: [FWS-HQ-ES-2013-0055]; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 
2042-PDM; Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT: Janine Van Norman, Chief, Branch of 
Foreign Species, Endangered Species Program, U.S. Fish and Wildlife 
Service, 4401 North Fairfax Drive, Room 420, Arlington, VA 22203; 
telephone 703-358-2171; facsimile 703-358-1735. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.


Public Comments

    You may submit your comments and materials concerning this rule by 
one of the methods listed in the ADDRESSES section. We will not accept 
comments sent by email or fax or to an address not listed in the 
ADDRESSES section. If you submit a comment via http://www.regulations.gov, your entire comment--including your personal 
identifying information--will be posted on the Web site. If you submit 
a hardcopy comment that includes personal identifying information, 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. We will post all hardcopy comments on http://www.regulations.gov.

Executive Summary

    Purpose of the Regulatory Action: We are listing the southern white 
rhino (Ceratotherium simum simum) as threatened under the ``similarity 
of appearance'' provisions of the Endangered Species Act of 1973, as 
amended (Act). Horns and other products made from this species and 
other rhinoceros species listed as endangered under the Act are 
difficult for law enforcement to distinguish, which makes it difficult 
for law enforcement personnel to enforce and further the provisions and 
policies of the Act. The determination that the southern white rhino 
should be treated as threatened due to similarity of appearance will 
substantially facilitate law enforcement actions to protect and 
conserve all endangered rhino species.
    Major Provisions of the Regulatory Action: This action is 
authorized by the Endangered Species Act of 1973 (Act), as amended, 16 
U.S.C. 1531 et seq. We are amending subpart B of chapter I, title 50 of 
the Code of Federal Regulations Sec.  17.11(h), by adding the southern 
white rhinoceros to the List of Endangered and Threatened Wildlife due 
to a similarity of appearance.


    Poaching and the illegal trade in rhinoceros horn pose serious 
threats to all rhinoceros species worldwide. A significant increase in 
demand for rhinoceros horn for medicine in southeast and east Asia, 
notably Vietnam and China, is the primary factor driving the trade 
(Cavaliere 2010, unpaginated; Milliken et al. 2009, p. 9; Robinson 
2009, p. 3; Mills 1997, p. 1). Rhino horn has historically been 
utilized in traditional Chinese medicine (TCM) for a wide variety of 
ailments, including fever, convulsions, and delirium (Cavaliere 2010, 
unpaginated; Bell & Simmonds 2006, p. 15; Mills 1997, p. 2; But et al. 
1990, p. 158; Laurie 1978, p. 2). In 1981, China became a signatory to 
the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES), and due to international pressures, China 
enacted the Notice Promulgated by the State Council on the Prohibition 
of Trade in Rhinoceros Horn and Tiger Bone in 1993, which banned 
domestic and international trade in rhino horn and tiger bone, 
including derivatives and their use in TCM pharmacopeia (CITES n.d., 
unpaginated; Mills 1997, pp. 3-4). Since then, the use of rhino horns 
for medicinal purposes has been widely discouraged by TCM practitioners 
(Huang L. 2011, p. 2; Robinson 2009, p. 5). Despite a lack of 
scientific evidence supporting the medicinal properties of rhino horn, 
a recent resurgence of interest has occurred throughout Asia for its 
purported value as a cancer treatment (Gwin 2012, unpaginated; Rivera & 
Thomas 2012, unpaginated). Although this rumor has been widely 
repudiated by the western scientific and medical community as well as 
by the TCM community, this rumor has contributed to the increased 
demands on the illegal market and has thus promoted the illegal 
poaching of rhinos.
    Another factor influencing the poaching and illegal trade of rhino 
horns is an increased interest and demand for libation cups and other 
rhino horn carvings (such as dagger handles). Traditionally, libation 
cups and dagger handles carved out of rhino horn have held historic and 
symbolic significance in Chinese and Middle Eastern cultures (Vigne & 
Martin 2000, pp. 91, 98; Martin 1990, p. 13). Additionally, some 
mention has been made of libation cups having anti-poisoning properties 
(Groves and Leslie 2011, p. 203; Lang 2011, unpaginated; Laurie 1978, 
p. 2).
    According to the United Nations Office on Drugs and Crime (UNODC), 
rhino horn has emerged in the black market as a rare and valuable 
commodity with street prices equal to those of gold, at roughly USD 
$65,000 per kilogram (UNODC 2012, p. 5). In southern Africa, this 
growing market demand is fueling dramatic increases in rhino poaching. 
In Europe, multiple thefts of rhino horns from antique dealers, auction 
houses, art galleries, private collectors, zoos, museums, taxidermists, 
and game reserves have been documented (USFWS Office of Law Enforcement 
(OLE) pers. comm. 2012; Viscardi 2012, p. 10; Europol 2011, p. 1). In 
some instances, physical assaults have occurred (Viscardi 2012, p. 10). 
Since 2007, more than 65 stolen horns have been reported (Shaw 2012, p. 
4). FWS sources have reported that poachers are increasingly well-
connected in the field and in consumer countries; they are equipped 
with GPS units, cell phones, and weapons, and appear to be working for 
syndicates that equip them with clothes, vehicles, and detailed 
information on rhino distribution and rhino behavior. Rhino horns move 
rapidly across international borders, evading detection through well-
resourced, organized, politically powerful syndicates (USFWS 9: M. 
Gadd, unpubl. document 2011; Milliken 2009, p. 4). This transition from 
ordinary poachers to well-resourced, transnational organized crime 
groups has created additional challenges for law enforcement personnel 
(UNODC 2012, pp.1, 6).
    In the United States, OLE has observed a dramatic increase in 
demand for rhino horns. The OLE has information that these horns are 
being funneled to Southeast Asia to meet regional demand. In 2010, the 
Service's OLE arrested two Irish nationals engaged in the unlawful 
trade in rhinoceros horns. These individuals, who were later convicted, 
had traveled from Europe to the United States to procure and smuggle 
rhino horns for the illegal trade. In 2012, the OLE, in coordination 
with several other agencies, confiscated 37 rhino horns and a number of 
carved rhino horn

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products (U.S. Department of Justice 2012, unpaginated).

Previous Federal Actions

    Under the Endangered Species Conservation Act of 1969, the 
predecessor to the Act, the Javan (Rhinoceros sondaicus), Sumatran 
(Dicerorhinos sumatrensis), and northern white (Ceratotherium simum 
cottoni) rhinos were listed as endangered, effective June 2, 1970 [35 
FR 8491-8498]. The Indian rhino was also later listed as endangered 
under the Endangered Species Conservation Act of 1969, effective Dec. 
2, 1970 [35 FR 18319-18322]. In 1974, the Javan, Sumatran, and northern 
white rhinos were subsequently included on the Federal List of 
Endangered and Threatened Wildlife as endangered species under the Act. 
The black rhino was listed as endangered under the Act, effective 
August 16, 1980 [45 FR 47352-47354, July 14, 1980]. Currently, the 
southern white rhino is the only subspecies of rhinoceros not listed 
under the Act. On January 17, 2012, the OLE requested that the southern 
white rhino be listed as a threatened species based on the similarity 
of appearance provisions of section 4(e) of the Act and our 
implementing regulations at 50 CFR 17.50.

Species Overview

    Rhinoceroses occur in Asia and Africa. Africa has two distantly 
related genera of rhinos, the white rhino and the black rhino. Asia is 
home to the Javan rhino, the Sumatran rhino, and the Indian rhino.

White Rhino (Ceratotherium Simum)

    Species Description: Currently, two subspecies of white rhino are 
recognized, the southern white rhino (Ceratotherium simum simum) and 
the northern white rhino (Ceratotherium simum cottoni). These 
subspecies are distinguished primarily by geographical range 
differences but also maintain some morphological distinctions, 
including small differences in cranial measurements, teeth shape and 
size, and skin folding patterns (Groves et al 2010, pp. 3-10). White 
rhinos on average weigh between 1,500 to 2,400 kilograms (kg) (3,300-
5,300 pounds (lb)), and have an immense body with a relatively large 
head, which is supported by a prominent muscular hump (Groves et al 
2010, pp. 8, 10; Groves et al 1972, p. 3). Typical height at the 
shoulders can range from 1.71 to 1.85 meters (m) (5-6 feet (ft)), and 
the length of the spine can span 2.45 to 2.84 m (8-10 ft) (Groves et 
al. 2010, p. 9). The white rhino is estimated to have a lifespan of 40 
to 50 years in captivity (Burnette 2011, unpaginated; Rookmaaker 1998, 
p. 22). A feature unique to the white rhino is its relatively broad, 
square-lipped mouth, which is adapted for grazing practices (Groves et 
al. 1972, p. 1). The white rhino maintains the distinction of producing 
the largest horns recorded, both in length and in diameter (Groves 
1971, p. 250). Both the northern white rhino and the southern white 
rhino have two horns. The frontal horn (anterior) of the northern white 
rhino is the largest and averages 37 to 40 inches in length; the 
southern white rhinos' frontal horn is more variable and can range 37 
to 79 inches. White rhinos' second horn (posterior) is smaller and may 
reach lengths of up to 22 inches (Rhino Resource Center (RRC) n.d.(b), 
    Geographic Range and Population:
    Southern white rhino (C. s. simum): The current combined wild and 
captive southern white rhino population is estimated to be 20,160 
individuals (Emslie & Knight 2011, p. 8). Current southern white rhino 
populations within their natural range are in Botswana, Namibia, South 
Africa, Swaziland, and Zimbabwe. Additionally, three countries, 
including Uganda, Kenya, and Zambia, maintain nonnative populations 
(USFWS 9: M. Gadd, pers. comm. 2013).
    Historically, the southern white rhino had a large range that 
included Angola, Botswana, Malawi, Mozambique, Namibia, South Africa, 
Sudan, Swaziland, and Zimbabwe (USFWS 9: M. Gadd, pers. comm. 2013; 
Emslie & Brooks 1999, pp. 9-10). This subspecies has an unusual past; 
in fact, the population trends have been the opposite of the trends for 
every other species of rhino. In 1895, this subspecies was considered 
extinct until a small population of less than 20 individuals was 
discovered in the Umfolozi-Hluhluwe region in Natal, South Africa 
(Emslie & Brooks 1999, p. 10). Due to increased protections, numbers 
began to substantially increase. By 1948, the numbers had increased to 
550; by 1984, to 3,800; by 1997, the population had grown to 8,440; and 
the 2012 estimate is 20,160 (Emslie & Brooks 1999, p. 10; Emslie & 
Knight 2011, p. 8). This growth in population has been due in large 
part to the successful conservation efforts and anti-poaching programs 
established by both the South African Government and private 
    Northern White Rhino (C. s. cottoni): The northern white rhino has 
seen the opposite trend with regard to its population status. In 1960, 
the population of northern white rhinos was estimated to be 2,230; in 
1984, the estimated population decreased to 15 individuals (Emslie & 
Brooks 1999, p. 9). This species' historical range included 
northwestern Uganda, southern Chad, southern Sudan, the Democratic 
Republic of Congo and eastern Central African Republic (Emslie & Brooks 
1999, p. 7). The last known wild population of northern white rhinos 
were located in the Democratic Republic of the Congo; however, despite 
extensive searches, no live sightings have been reported since 2006, 
nor have signs of their presence been reported since 2007 (Emslie 2011, 
unpaginated). It is, therefore, likely that this species has become 
extinct in the wild. The last remaining captive population of four 
individuals was relocated from Dvur Kralove Zoo in the Czech Republic 
to a private sanctuary in Kenya where it is hoped that they will be 
able to successfully reproduce with the aid of southern white rhinos 
(Emslie 2011, unpaginated; Emslie & Knight 2011, p. 8).

Black Rhino (Diceros Bicornis)

    Species Description: The black rhino weighs between 800 and 1,350 
kg (1,750-3,000 lbs), stands 1.4 to 1.7 m (4.5-5.5 ft) at the shoulder, 
and has an average length of 3 and 3.8 m (10-12.5 ft). The average 
lifespan for a black rhino is between 30 and 40 years, although the 
oldest recorded captive individual lived to 44 years, 9 months (Rhino 
Resource Center (RRC) n.d.(a), unpaginated). The black rhino shares the 
same color as that of the white rhino; it is primarily grey-brown. 
Other than its smaller stature, the black rhino differs from the white 
rhino in its prehensile pointed hooked lip, which aids in the browsing 
of leaves and bushes. Like the white rhino, black rhinos have two 
horns; the anterior horn averages 0.5 to 1.3 m (18-52 inches) while the 
posterior horn can measure 0.02 to 0.55 m (1-22 inches) in length (RRC 
n.d.(a), unpaginated).
    Geographic Range and Distribution: Worldwide, there are an 
estimated 4,880 black rhinos in the wild; and in 2005, 240 were 
reported in captivity (Emslie 2012, unpaginated; Emslie & Knight 2011, 
p. 8). Specific subspecies population approximations include 1,920 D.b. 
bicornis, 740 D.b. michaeli, and 2,220 D.b. minor (Emslie 2012, 
unpaginated). The current range of D.b. bicornis is restricted to 
Namibia and South Africa; D.b. michaeli is thought to be limited to 
Kenya and Tanzania; and D.b. minor's stronghold is currently South 
Africa, to a lesser extent Zimbabwe, with a few remaining in

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Tanzania (Emslie 2012, unpaginated). Historical ranges include 
Cameroon, Chad, southern Sudan, Ethiopia, Somalia, Kenya, Tanzania, 
Namibia, Angola, Botswana, South Africa, Zimbabwe, Mozambique, 
Democratic Republic of Congo, Zambia, Rwanda, Swaziland, Malawi, and 
Uganda (Emslie & Brooks 1999, pp. 3, 5). It is believed that the 
population of black rhino in 1900 exceeded 100,000; reports have 
described them as so numerous that the governments considered them an 
agricultural pest. By 1980, however, the population dropped to 14,785. 
In 1995, the black rhino population hit an all-time low of 2,410 
individuals (Emslie 2011, p. 8; Gadd 2011, p. 2; Emslie & Brooks 1999, 
p. 5).

Indian Rhino (Rhinoceros Unicornis)

    Species Description: The Indian rhino is one of the three species 
of Asian rhino and has the largest population due to considerable 
conservation efforts. The Indian rhino weighs between 1,599 and 2,132 
kg (3,525-4,700 lb); stands at 1.59 to 1.86 m high at the shoulder 
(5.2-6.1 ft); and averages 4.12 m in length (13.5 ft) (Laurie et al. 
1983, p. 1; Groves 1982, p. 16). The Indian rhino has an estimated 
lifespan of 40 to 50 years. This species, along with the Javan rhino, 
is distinct from the African rhino species in that each individual has 
only one horn (Groves 1971, pp. 242-246). The length of the horn ranges 
from 0.2 to 0.6 m (8-24 inches) in length. The Indian rhino has a 
prehensile upper lip, which is used for pulling branches and leaves 
into its mouth; this species also consumes grasses and pulls its upper 
lip tight against its mouth to form a hard square lip similar to that 
of a cow (Groves 1982, p. 20).
    Geographic Range and Distribution: The historical range of Indian 
rhinos once included Nepal, Bangladesh, Bhutan, Myanmar, southern 
China, possibly Indochina, India, and Pakistan.
    The current estimated population of Indian rhinos is 2,716 
individuals in India and 534 individuals in Nepal, for a total of 
3,250. Their current stronghold country is India, particularly in the 
state of Assam wherein it is estimated the population is over 2,000; 
plans are in place to increase this to 3,000 by the year 2020 (Singh 
2012, p. 1). The large majority of Indian rhinos occupy various 
national parks and are highly protected. March 2012 estimates include 
2,290 rhinos in Kaziranga National Park, 93 individuals in Pabitora 
Wildlife Sanctuary, 100 individuals in Orang National Park, and 22 in 
Manas Tiger Reserve (which have been translocated from Pabitora 
Wildlife Sanctuary and Kaziranga National Park since 2006). Other 
populations in India include 42 in Gorumara National Park; 140 in 
Jaldapara Wildlife Sanctuary; and 29 in Dudhwa National Park. In Nepal, 
Chitwan National Park has an estimated 503 rhinos, Bardia National Park 
has reported 24 individuals, and Suklaphanta Wildlife Reserve is 
estimated to contain 7 individuals.

Javan Rhino (Rhinoceros Sondaicus)

    Species Description: The Javan Rhino weighs between 1,200 and 2,280 
kg (2,650-5,025 lbs), stands 1.20 to 1.70 m (3.9-5.6 ft) in height, and 
ranges between 3.05 and 3.44 m (10-11.3 ft.) in length (Groves 1982, p. 
16). The average lifespan of the wild Javan rhino is unknown; however, 
records have shown a captive individual having reached the age of 21 
years (Groves & Leslie 2011, p. 198). The Javan rhino has a mouth 
similar to that of the black rhino, with a pointed upper lip that 
exhibits almost prehensile abilities in browsing for leaves, shoots, 
and twigs of mostly woody species (Groves & Leslie 2011, p. 199). The 
Javan rhino has only a single anterior horn, which averages 20 to 25 cm 
(7.9-9.8 inches) in length. Horns primarily occur in males, although 
rare observations have recorded their presence in females (Regan 1987, 
p. 706; Groves 1982, p. 16; Groves 1971, pp. 243-246).
    Geographic Range and Distribution: A single population of Javan 
rhino, consisting of fewer than 40 individuals, is located in Ujung 
Kulon National Park in Java. The individual from Cat Loc National Park 
in southern Vietnam was killed in 2011, most likely due to poaching as 
its horn had been removed (Brook 2012, p. 64; Sargent 2011, 
unpaginated). Historical records indicate the species' range at one 
time may have included Ujung Kulon, Sumatra, Borneo, Malaya, Perak, 
Thailand, Burma, Laos, China, Cambodia, Vietnam, India, and Bangladesh.

Sumatran Rhino (Dicerorhinus Sumatrensis)

    Species Description: The Sumatran rhino is the smallest rhino 
species with a weight between 600 and 950 kg (1,300-2,000 lbs). It 
stands only 1 to 1.5 m in height (3-5 ft) and is 2 to 3 meters in 
length (6.5-9.5 ft) (RRC n.d.(d), unpaginated). Wild Sumatran rhinos 
are believed to have an average lifespan of 30 to 45 years; however, 
the oldest individual in captivity lived to 28.5 years (VanStrien et al 
2008, unpaginated). The Sumatran rhino is the only Asian rhino to have 
two horns; the anterior horn measures 0.25 to 0.79 meters in length 
(0.83-2.58 ft), while the posterior horn is much smaller with an 
average length of 0.1 meters (0.25 ft). This species of rhino is 
distinct from other species in that it retains its incisors as well as 
its canine teeth (CAC 2012, unpaginated). Sumatran rhinos also have the 
distinction of being the hairiest rhinos, are a reddish brown color, 
and have tufted ears (VanStrien et al 2008, unpaginated; Agil 2007, p. 
    Geographic Range and Distribution: Current population estimates of 
Sumatran rhinos range between a minimum of 220 and a maximum of 275 
individuals; 10 are currently in captivity, although 96 have been 
recorded in the past 200 years. Their current range includes selected 
national parks throughout Indonesia, Malaysia, Sumatra, and Borneo. 
Some of them include Way Kambas, Bukit Barisan Selatan, Gunung Leuser, 
Taman Negara, and Tabin Wildlife Reserve. The historical range included 
Myanmar (Burma), Lao PDR, Vietnam, Thailand, Malaysia, the Indonesian 
islands of Sumatra and Borneo, and northeastern India. Historical 
population numbers and native geographic range states are estimated as 
many historical records failed to distinguish between Asian rhino 
subspecies (Van Strien et al 2008, unpaginated).

Horn Morphology

    Rhino horn shape and color vary depending on a variety of factors. 
Although extensive research has been conducted and published regarding 
the chemical and genetic composition of rhino horns from each of these 
species, generally these differences cannot be detected visually by law 
enforcement personnel. Rhinoceros horns are similar in appearance 
between species and subspecies; most are homogenous in appearance, and 
all are composed of the protein keratin. Generally, horns range in 
color from tan to brown to black. Shengqing et al (2010) determined the 
color of rhinoceros horn products to be shades of brown, intact 
rhinoceros horn to be shades of yellow, and ground powder to be gray-
white (Shengqing et al 2010, p. 637). According to Groves (1972), ``in 
wild specimens the horn is colored like the body, dark grey or even 
black, darker on the stem than on the base, darker in Asiatic rhinos, 
and darker in adults than in juveniles'' (Groves 1972, p. 239). 
Differences in horn size can be misleading as they depend on the age, 
gender, and species of the individual; additionally, horn shape is 
influenced by external factors such as living in captivity. Additional 
identification challenges arise when rhino horns are carved into 
libation cups, dagger handles, or other

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ornaments, and such processing can make the determination of species 
almost impossible. Thus, only with genetic testing can individual horns 
be definitely linked to specific species.

Current Regulatory Mechanisms

    Many range states protect their rhino populations. The primary 
conservation method is through the physical protection of rhinos 
existing in state-run conservation areas such as national parks and 
wildlife sanctuaries. Researchers estimate that more than seventy-five 
percent of African rhino populations are within these types of 
facilities (Emslie & Brooks 1999, p. 16). However, due to increased 
poaching within these protected areas, additional measures have had to 
be taken. Translocation has been a major component in conservation of 
live rhinos. For example, in Zimbabwe, vulnerable rhinos were moved to 
safer locations in response to poaching and other threats (Milliken et 
al 2009, p. 9). Some range states have attempted to reduce the number 
poached by tranquilizing rhinos and removing their horns; 
unfortunately, there have also been reports of poachers killing and 
removing even the smallest stumps from these animals. Range states and 
private owners have thus accumulated stockpiles of rhino horn that need 
to be carefully managed (Milliken et al 2009, pp. 10-11). Despite these 
conservation measures, the rate of poaching in stronghold locations, 
namely South Africa, has continued to rise in unprecedented rates. In 
South Africa, which contains approximately 80 percent of the world's 
rhinos, poaching levels increased from only 13 in 2007 to 448 in 2011; 
South Africa reported 668 rhinos poached in 2012 (Republic of South 
Africa 2013, unpaginated; UNODC 2012, p. 5; Milliken & Shaw 2012, p. 

Impacts of Poaching on Private Land Owners and Commercial Live-Rhino 

    Private landowners have made a large contribution toward rhino 
conservation through private ownership and custodian agreements on 
behalf of range states, and account for almost 25 percent of the 
African rhino populations (Emslie and Brooks 1999, p. 16). These 
landowners and companies contribute to the conservation of rhinos 
through tourism, live rhino sales, and limited trophy hunting of 
surplus bulls and/or elder females (Emslie & Brooks 1999, p. 18). 
Private owners contribute roughly 20,000 sq km (4,942,110 acres) of 
land toward rhino conservation efforts. Due to increased poaching over 
the last 6 years, rhino protections costs have sharply risen. During 
the same time period, the prices for live rhinos have dropped 11 
percent. Live rhino sales include sales of live rhinos at auction and 
live rhino darting activities for hunters. Privately owned populations 
and the overall live rhino industry are losing capital and have begun 
to perceive it as possibly too risky of a venture to continue (Knight 
2012, pp. 12-13). The possible loss of these privately owned lands has 
the potential to result in overcrowding or higher population densities 
within protected areas (Knight 2012, pp. 12-13), which are already 
under siege from poachers.


    On Jan. 7, 1975, the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES) included the 
Northern white, Javan, Sumatran, and Indian rhinoceros on Appendix I. 
Species listed as CITES' Appendix I are considered threatened with 
extinction which are or may be affected by trade, and international 
trade is permitted only under exceptional circumstances. Trade in 
Appendix I specimens for primarily commercial purposes is generally 
precluded. The black rhino was listed in Appendix II on January 7, 
1975, which includes species that are not necessarily now threatened 
with extinction, but may become so unless trade is subject to strict 
regulation to avoid utilization incompatible with the species' 
survival. International trade in specimens (dead or live) of Appendix I 
and II species is authorized through a system of permits or 
certificates under certain circumstances. This process includes 
verification that trade will not be detrimental to the survival of the 
species in the wild, and that the material was legally acquired 
    On April 2, 1977, the black rhino was reclassified to Appendix I, 
and the Southern white rhino was added to Appendix I. Since 1977, the 
implementation of effective management techniques in several countries, 
most notably South Africa, increased the southern white rhino 
populations to a viable number. Thus, in 1995, the South African 
population of southern white rhino was reclassified to Appendix II for 
the exclusive purpose of allowing international trade in live animals 
to appropriate and acceptable destinations and in hunting trophies. 
Similarly, in 2005, the Swaziland population of southern white rhino 
was also listed on Appendix II for the exclusive purpose of allowing 
international trade in live animals to appropriate and acceptable 
destinations and in hunting trophies. All other specimens of southern 
white rhino are considered to be listed in Appendix I and are regulated 
under CITES as such.
    Currently, all rhino species and subspecies are listed in CITES 
Appendix I, except the South African and Swaziland populations of 
southern white rhinos, which are listed as Appendix II. This listing 
has provided South Africa and Swaziland the ability to trade 
internationally in white rhino hunting trophies and in live white 
rhinos to appropriate and acceptable destinations. Additionally, with 
the adoption of Resolution Conference 13.5 in 2004, South Africa and 
Namibia have been permitted to export five trophy-hunted black rhinos 
(D. bicornis) annually.

Live Rhino and Rhino Horn Imports and Exports

    Under Appendix II of CITES, live specimen trade is legal provided 
the trade is conducted with regard to ``appropriate and acceptable 
destinations.'' Swaziland populations have been traded as part of a 
project to expand base populations over the last few years (Milliken et 
al. 2009, p. 7). The discrepancies in trade volumes include some 
inexplicable anomalies. Between 2006 and 2009, according to CITES data, 
South Africa exported 193 live rhinos. However, data from importing 
countries indicate that at least 235 live rhinos were received from 
South Africa. In the case of live rhino export to China, South Africa 
reported exporting 61 rhinos in 2006 and 2007, while China recorded 
receiving 117 rhinos from South Africa during the same time (Milliken 
et al. 2009, p. 7). Rumors about rhino farming in China and campaigns 
to encourage the use of rhino horn resulted in South Africa putting a 
moratorium being placed on live rhino exportations. This resulted in a 
Memorandum of Understanding (MoU) between the South African Government 
and the Socialist Republic of Vietnam, signed in December of 2012, 
which promotes law enforcement coordination, increased compliance with 
CITES regulations, and places restrictions on trade and exportation of 
certain rhino products.

Poaching and the Inadequacy of Existing Regulatory Mechanisms

    Trends in poaching over the last 5 years have demonstrated that 
current regulatory mechanisms and conservation efforts are inadequate 
to respond to the growing market for rhino horn products. In 2007, only 
13 cases of poaching in South Africa were

[[Page 55654]]

documented. However, in 2010, these figures increased to 333, and in 
2011, the South African Government reported poaching of 448 rhinos 
(Milliken and Shaw 2012, p. 11). The South African Government reported 
668 rhinos poached during 2012 (Republic of South Africa 2013, 
unpaginated). Poachers have been increasingly advanced in their methods 
with the illegal misappropriation of or reuse of gaming licenses; 
helicopters and tranquilizer guns appropriated from veterinary 
facilities have also been used (Viscardi 2012, p. 10). Additional 
regulatory enforcement mechanisms are needed to address this escalating 

Facilitation of Enforcement

    As explained in more detail under the section titled ``Otherwise 
Prohibited Activities and Permitting Requirements,'' this interim rule 
will apply all of the prohibitions for threatened species found at 50 
CFR 17.31 to the southern white rhino. These prohibitions, under 50 CFR 
17.31, would, in part, make it illegal for any person subject to the 
jurisdiction of the United States, to deliver, receive, carry, 
transport, or ship southern white rhino specimen(s) in foreign or 
interstate commerce, by any means whatsoever and in the course of a 
commercial activity; or sell or offer for sale in interstate and 
foreign commerce any specimen of southern white rhino.
    In light of the significant demand for acquiring rhino specimens 
within the United States for movement into the Asian black market, 
extending the Act's prohibitions relating to commerce to the southern 
white rhino under the similarity of appearance provisions will 
substantially facilitate law enforcement actions to protect and 
conserve all listed rhino species by curtailing unauthorized commerce 
in endangered rhino specimens. Presently, with the southern white rhino 
being the only subspecies of rhino that is not listed under the Act, 
unauthorized commerce in listed rhino specimens within and through the 
United States occurs with individuals able to purposefully or 
accidentally misrepresent that specimens of endangered rhino are 
specimens of the Southern white rhino. Thus, this similarity of 
appearance listing will eliminate this loophole in enforcing the Act's 
protections for listed rhino species by extending the Act's 
prohibitions regarding certain commerce activities to all rhino 
species, unless such activities are properly authorized.

Similarity of Appearance

    Under section 4(e) of the Act, the Secretary, acting through the 
Service, ``may, by regulation of commerce and taking, and to the extent 
he deems advisable, treat any species as an endangered species or 
threatened species even though it is not listed pursuant to section 4 
of the Act if the Secretary finds that--(a) such species so closely 
resembles in appearance, at the point in question, a species which has 
been listed pursuant to such section that enforcement personnel would 
have substantial difficulty in attempting to differentiate between the 
listed and unlisted species; (b) the effect of this substantial 
difficulty is an additional threat to an endangered or threatened 
species; and (c) such treatment of an unlisted species will 
substantially facilitate the enforcement and further the policy of this 
Act.'' Due to the similarity of appearance of rhino horns, parts, and 
products from all rhino species, law enforcement personnel are unable 
to determine the species, much less the population, from which the 
rhino horn, part, or product was derived. When rhino horn or product is 
carved or modified, such as into a libation cup, the ability to make 
the determination of legality is further compromised. This is the 
primary justification for this similarity of appearance listing.
    In addition, this difficulty in distinguishing a specimen of 
endangered rhino species from a specimen of the southern white rhino is 
an additional threat to the rhino species listed under the Act. The 
Service has information indicating that unauthorized commerce involving 
parts and products of listed rhino species is being conducted via the 
United States by persons who purposefully or accidentally misrepresent 
that specimens have originated from the southern white rhino. Thus, the 
difficulty in distinguishing endangered rhino specimens from specimens 
of southern white rhino is resulting in specimens of listed rhino 
species entering the global black market via the United States. This 
illegal movement of endangered rhino parts and products via the United 
States is contributing to the market demand for such items. With the 
increasing market demand for rhino parts and products and the street 
value of rhino horn now being roughly estimated at $65,000 per 
kilogram, this flourishing black market is stimulating unprecedented 
levels of poaching, and, indeed, this recent upsurge in rhino poaching 
coincides precisely with the renewed consumer demand for rhino parts 
and products (See discussion under ``Background'').
    Lastly, as previously discussed, listing the southern white rhino 
pursuant to the Act's similarity of appearance provisions will 
facilitate the enforcement and further the policy of the Act. This 
action will stem an enforcement problem that has contributed to the 
unauthorized commerce of endangered rhino specimens from the United 
States, thereby ameliorating the threat to endangered rhino species 
from illegal trade and providing for the conservation of these species 
listed under the Act.

Effects of This Interim Rule

Otherwise Prohibited Activities and Permitting Requirements

    Section 4(d) of the Act specifies that, for threatened species, the 
Secretary shall issue such regulations as he deems necessary and 
advisable to provide for the conservation of the species. Under this 
authority, the Service has promulgated certain regulations at 50 CFR 
17.31. Specifically, 50 CFR 17.31 provides that the prohibitions for 
endangered wildlife under 50 CFR 17.21, with the exception of 
17.21(c)(5), also apply to threatened wildlife unless a special rule 
has been developed under section 4(d) of the ESA. The prohibitions of 
50 CFR 17.31 include, among others, take, import, export, and shipment 
in interstate or foreign commerce in the course of a commercial 
activity of a threatened species.
    Under the Act's similarity of appearance provisions, the Secretary 
may, ``to the extent he deems advisable, treat any species as an 
endangered species or a threatened species even though it isn't listed 
pursuant to section 4 of [the] Act . . .''. Furthermore, the Service's 
regulations implementing the Act's provisions on similarity of 
appearance provide that all of the regulatory provisions found at 
subpart D, which include the general prohibitions for threatened 
species, shall apply, as appropriate, to any species listed pursuant to 
the similarity of appearance provisions. See 50 CFR 17.51(a). Thus, 
exercising this discretion, the Service has determined that all of the 
prohibitions under 50 CFR 17.31 shall apply to the southern white 
rhino, which is being designated as a threatened species under the 
similarity of appearance provisions of section 4(e) and the Service's 
implementing regulations at 50 CFR 17.50. This designation due to 
similarity of appearance under section 4(e) of the Act, however, does 
not extend other protections of the Act, such as consultation 
requirements for Federal agencies under section 7 and the recovery 
planning provisions under section 4(f) that apply to species that are

[[Page 55655]]

listed as endangered or threatened under section 4(a).
    Although the general permit provisions for threatened species are 
found at 50 CFR 17.32, the Service issues permits for otherwise 
prohibited activities involving endangered or threatened species listed 
due to similarity of appearance under the regulatory criteria at 50 CFR 
17.52. Under 50 CFR 17.52, a permit may be issued for any otherwise 
prohibited activity if the applicant adequately identifies the wildlife 
or plant in question so as to distinguish it from any endangered or 
threatened wildlife or plant.
    In the case of the southern white rhinoceros, the Service's 
criteria to issue such a permit or other authorization would consist of 
the permit applicant providing adequate information to document that 
the specimen involved in the activity is a southern white rhinoceros. 
Such documentation could consist of a CITES export permit issued by a 
country that is party to CITES, veterinarian reports, a breeder's 
statement, qualified appraiser's statements, or other documentation 
that shows the species identification and the origin of the specimen.
    Further, pursuant to section 9(c)(2) of the Act, noncommercial 
importations into the United States of threatened species that are 
listed under CITES Appendix II and taken and exported in accordance 
with CITES are presumed not to be in violation of any provision of the 
Act or any regulation under the Act, provided that applicable 
requirements under sections 9(d), 9(e), and 9(f) are met. For southern 
white rhinoceros exported from South Africa or Swaziland, which are 
currently the only populations of southern white rhinoceros listed in 
Appendix II of CITES, no ESA regulatory permit for importation is 
required, provided that the specimen was legally exported from one of 
those two countries, the importation was not made in the course of a 
commercial activity, and other applicable requirements are met. 
Therefore, a sport-hunted trophy of southern white rhino, legally taken 
and exported from South Africa or Swaziland, would not require a 
separate ESA regulatory permit to import it into the United States. 
However, the sport-hunted trophy will still be subject to the 
provisions of CITES, and, therefore, a CITES Appendix II permit from 
the country of export will still be required. It should be noted, 
however, that due to the ``use after import'' restrictions under the 
CITES regulations (50 CFR 23.55), southern white rhinoceros imported as 
a sport-hunted trophy or for other noncommercial purposes could not be 
subsequently sold or otherwise entered into commerce.

Need for Interim Final Rule

    Under section 553(b) of the Administrative Procedure Act (APA), we 
have good cause to find that the delay associated with public comment 
on a proposed rule to list the southern white rhino under the Act's 
similarity of appearance provisions would negatively impact the 
conservation of endangered rhino species listed under the Act and, 
therefore, is contrary to the public interest. With this action, the 
southern white rhino will receive immediate protections afforded to 
species through the regulation of commerce under the Act. This 
immediate protection is necessary to deter trade in currently listed 
rhino species that would otherwise occur via the United States during 
the intervening time period required to finalize a rulemaking under the 
APA's public notice and comment procedures. This illegal trade via the 
United States is contributing to a black market that continues to 
attract poachers, resulting in an upsurge in the unsustainable killing 
of endangered rhino species. In light of the critically low abundance 
levels and restrictive ranges of all of the rhino species currently 
listed under the Act, immediate measures to curtail some of the trade 
in rhino specimens is necessary to alleviate the pressures to the 
species associated with poaching for the global black market.
    Based upon the rationale noted above for applying the APA's 
exemption to the notice and comment requirements to this rulemaking in 
the interest of the public, we also have good cause to waive the 
standard 30-day effective date for this rule consistent with section 
553(d)(3) of the APA. A 30-day delay in the effective date of this rule 
would result in elevated levels of trafficking in parts and products of 
listed rhino species and in accompanying increases in poaching of 
endangered rhino species during the intervening time period between 
publication of this rule in the Federal Register and its date of 
effectiveness. If there were a 30-day delay before this published 
listing rule took effect, persons could seek to take advantage of the 
regulatory loophole caused by the similarity of appearance with the 
southern white rhino before this impending regulation under the Act 
became effective. Thus, under this scenario, the Service reasonably 
believes a spike in the illegal trade and poaching of endangered rhino 
species could occur with this delay.
    While we are taking these immediate steps to protect these species, 
we invite public comment as set forth in DATES and ADDRESSES.

Required Determinations

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, send us comments 
by one of the methods listed in ADDRESSES. To better help us revise the 
rule, your comments should be as specific as possible. For example, you 
should tell us page numbers and the names 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.

Paperwork Reduction Act (44 U.S.C. 3501, et seq.)

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act. This rule will not impose new recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. 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 (42 U.S.C. 4321 et seq.)

    The Service has analyzed this rule in accordance with the National 
Environmental Policy Act of 1969 (NEPA). The Council on Environmental 
Quality's (CEQ) regulations implementing NEPA, at 40 CFR 1508.4, define 
a ``categorical exclusion'' as a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment and which have been found to have no such effect on the 
human environment. CEQ's regulations further require federal agencies 
to adopt NEPA procedures, including the adoption of categorical 
exclusions for which neither an environmental assessment nor an 
environmental impact statement is required, 40 CFR 1507.3. The Service 
has determined that

[[Page 55656]]

this interim rule is categorically excluded from further environmental 
analysis under NEPA in accordance with the Department's NEPA 
regulations at 43 CFR 46.210(i), which categorically excludes 
``[p]olicies, directives, regulations, and guidelines: that are of an 
administrative, financial, legal, technical, or procedural nature . . 
.''. In addition, the Service has determined that none of the 
extraordinary circumstances listed under the Department's regulations 
at 43 CFR 46.215, in which a normally excluded action may have a 
significant environmental effect, applies to this interim rule.

References Cited

    A complete list of all references cited in this interim is 
available on the Internet at http://www.regulations.gov or by 
contacting the person listed under FOR FURTHER INFORMATION CONTACT.


    The primary author of this interim rule is the staff of the Branch 
of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife 
Service, 4401 North Fairfax Drive, Room 420, Arlington, VA 22203 (see 

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as follows:


1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.

2. Amend Sec.  17.11(h) by adding an entry for ``Rhinoceros, southern 
white'' in alphabetical order under MAMMALS, to the List of Endangered 
and Threatened Wildlife to read as set forth below:

Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

                        Species                                                   Vertebrate
-------------------------------------------------------                        population where
                                                           Historic range       endangered or             Status                When listed          Critical habitat          Special rules
           Common name               Scientific name                              threatened
                                                                                          * * * * * * *
Rhinoceros, southern white.......  Ceratotherium simum  Botswana, South      Entire.............  T(S/A)................  ......................  N/A...................  N/A
                                    simum.               Africa, Swaziland,
                                                         Zambia, Zimbabwe.
                                                                                          * * * * * * *

    Dated: August 2, 2013.
Dan Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-22132 Filed 9-10-13; 8:45 am]