On March 29, 2024, we published to the Federal Register Reading Room a final rule amending the 4(d) rule of the Endangered Species Act (ESA) to benefit African elephants. This final rule helps ensure imports of live African elephants and authorized imports of elephant trophies into the United States contribute to enhancing conservation of the species in the wild and that live African elephants, captive in the U.S., are well cared for throughout their lifetimes. Additionally, the rule increases efficiency of permit application evaluations and provides transparency on how we make permit determinations for imports of African elephants.
Background
Across sub-Saharan Africa, African elephants numbered up to 26 million individuals at the end of the 18th century. Since then, threats such as poaching for ivory and loss of habitat have caused rapid declines in numbers. Today, the continent-wise estimate for African elephants is 415,000 individuals.
The African elephant was listed as threatened under the Endangered Species Act (ESA) in 1978. The 4(d) rule has been amended multiple times to address changing threats to African elephants.
Public Comment
Due to the robust public interest and number of responses, we extended the initial 60-day public comment period an additional 60 days and held a virtual public hearing with simultaneous translation in French and English to enable African elephant range country representatives to participate.
We received more than 130,000 comments, including four letter-writing campaigns with more than 111,000 signatures. Comments were also received from key stakeholders including African elephant range countries, sport hunting organizations, and animal advocacy and environmental non-government organizations. The comments supported a range of options, such as strengthening regulations, issuing a complete ban on the importation of live African elephants or sport-hunted trophies, and conversely that the proposed regulations were too restrictive. As we finalized this rule, we thoroughly considered all comments and additional information received during the comment period.
Frequently Asked Questions
Why did the Service amend the African elephant rule under section 4(d)?
The African elephant was listed as threatened under the ESA in 1978. Section 4(d) of the ESA provides the Secretary of the Interior with broad discretion to issue regulations tailored to the specific conservation needs of the threatened species.
We improved and updated our regulations for African elephants so current regulations match the current needs for African elephant conservation.
Why did we amend the African elephant 4(d) rule at this time?
We amended the rule to address concerns about the international trade in live African elephants, increase transparency of our permit decision-making, and more closely align U.S. requirements with guidance from the Convention on International Trade in Endangered Fauna and Flora Species (CITES). The final rule addresses the trade in live African elephants and their care in captivity within the United States and further clarifies the import requirements of African elephant sport-hunted trophies and parts or products other than ivory, which is regulated separately.
Is this the first time the African elephant 4(d) rule has been amended?
No. The 4(d) rule for African elephants has been amended four times in the past. The most recent amendment was in 2016 in response to an increase in elephant poaching for ivory. Based on our evaluation of the current threats to African elephants, we believe these new amendments are necessary and advisable to protect and conserve African elephants both in the wild and in captivity in the United States.
How will the revised rule benefit African elephants?
The revised rule will benefit African elephants by:
- Improving African elephant conservation and ensuring African elephants in the United States are well cared for throughout their lifetimes.
- Encouraging countries trading in elephants with the United States to enact national legislation necessary to implement the basic requirements of CITES.
- Clarifying sport-hunted trophy import regulations and permit requirements to increase transparency with stakeholders.
- Ensuring authorized imports of trophies and live elephants will contribute to enhancing conservation of the species and not contribute to the decline of the species.
- Providing an exception for the import of elephant and products, other than ivory, for law enforcement purposes and genuine scientific purposes.
What is CITES and how does it relate to this final rule?
CITES entered into force in 1975, and became the only treaty to ensure international trade in plants and animals does not threaten their survival in the wild. A state or country that has agreed to implement the Convention is called a Party to CITES. Currently there are 184 Parties, including 183 member countries and the European Union. A meeting of the Conference of the Parties (CoP) takes place every two to three years.
With the new rule, live elephants, sport-hunted trophies, and elephant parts or products (other than ivory, which is regulated separately) can be imported into the United States only if the exporting country has legislation and measures in place to effectively implement the basic requirements of CITES, as determined by the CITES National Legislation Project. This would ensure the exporting country has designated authorities to make the necessary CITES permit findings, enforce the provision of the Convention, and penalize illegal trade in listed specimens. It also ensures authorized imports of African elephants are not detrimental to the survival of the species.
What are the four requirements needed for a country to be included into the highest category (Category One) of the CITES National Legislation Project?
CITES requires all treaty signatories to have adequate national legislation and tools in place to effectively implement CITES. This includes:
- Designate at least one Management Authority and one Scientific Authority;
- Prohibit trade in specimens in violation of the Convention;
- Penalize such trade, and
- Confiscate specimens illegally traded or possessed.
All four requirements must be met by the national laws of a Party in order for the Party to meet the minimum requirements to implement CITES and for its legislation to be placed in Category One.
What are the three Categories of the CITES National Legislation Project?
The Secretariat, under the CITES National Legislation Project and in consultation with the concerned Party, analyzes national legislation for the four requirements and designates the legislation of each Party into one of three categories:
- Category One: Legislation that is believed generally to meet the requirements for implementation of CITES.
- Category Two: Legislation that is believed generally not to meet all of the requirements for the implementation of CITES.
- Category Three: Legislation that is believed generally not to meet the requirements for the implementation of CITES.
Each Party has an obligation to have national legislation in place that meets these requirements in order to engage in trade in compliance with CITES.
Will the United States support African elephant range state governments and African elephant conservation at the field level?
Yes. The United States will support relevant foreign governments in improving CITES implementation by contributing $100,000 in excess U.S. contributions to the CITES Trust Fund, through the Department of State, to support National Legislation Project activities in African countries.
In addition, the United States will support on-the-ground African elephant conservation efforts by providing funding through the African Elephant Conservation Fund. In fiscal year 2024 and through this Fund, we will provide $8 million to grantees to protect and conserve African forest and savanna elephant priority populations across a selection of the 37 range countries. This funding opportunity will support approximately 15 projects, ranging from $200,000 to $1,250,000 each to be spent over two to five years.
What are the changes from the proposed 4(d) rule to the final?
After careful review and consideration of the more than 130,000 public comments, and additional data received during the comment period, we made several changes from the proposed to the final rule including:
- We clarified that the CITES National Legislation Project Category One requirement will go into effect January 1, 2026, after CITES CoP20 (anticipated to be held in 2025). This will give range countries classified as Category Two or Three additional time to enact the domestic legislation needed to implement the basic requirements of CITES.
- We clarified that each special permit to transfer an elephant must include a condition that the elephant, and its offspring, will not be sold or otherwise transferred to another person or location without a special purpose permit. This will ensure that all facilities are suitably equipped to house and care for live African elephants.
- We clarified that any new requirement for imports of sport-hunted trophies will not impact sport-hunted trophy applications where the hunt occurred before the effective date of this rule.
- We revised the import requirement, clarifying that African elephant populations in a range country must be biologically sustainable for import of sport-hunted trophies and live African elephants to the United States.
- We adjusted the criterion that outlines how funds derived from live elephant and sport-hunted trophy imports should be applied toward African elephant conservation to ensure funding provided will lead to meaningful enhancement of the survival of African elephants in the wild.
- We provided more flexibility for applicants and range countries to demonstrate the significance of the amount of funds put toward African elephant conservation when determining whether the activities enhance the survival of the species in the wild.
- We clarified that a range country must provide the Service with a properly documented and verifiable certification dated no earlier than one year prior to the date the elephant is taken or removed from the wild, as opposed to when the permit is processed.
- We removed the requirement that requires 100 percent of African elephant meat from a hunt be donated to local communities. We recognize there are situations where there are no inhabitants, or there are other circumstances where it would be inappropriate to include this requirement.
- We clarified that the CITES National Legislation Project Category One requirement will allow for limited exceptions for the import of African elephant parts and products (other than ivory) for law enforcement purposes and genuine scientific purposes.
Why are we not imposing a complete ban on live African elephants and elephant products?
Several African elephant range countries support well-managed hunting programs, and the export of wildlife products is an important component of their national management plans for funding African elephant conservation. These funds are used to address threats such as poaching and illegal trade, habitat loss and degradation, and human-elephant conflict. Rather than banning these imports, the new rule will support relevant foreign governments to improve their implementation of CITES under national laws and may impact their management measures to enhance African elephant conservation.
What is the U.S. role in the live trade in African elephants?
U.S. institutions occasionally seek to acquire and import wild-caught African elephants for captive breeding programs and public display. There is a need to provide oversight of African elephants imported to the United States and transfers of live elephants within the U.S. to ensure these elephants and their offspring are going only to facilities that are suitably equipped to house and care for them. This will help ensure the conservation and long-term survival of elephants in the United States, reduce the pressure on elephants from the wild, and increase the long-term conservation and survival of elephants in the wild by reducing the overall number of imports to maintain elephants in captivity in the United States.
Will the new rule ban the trade in live elephants to the United States?
No. The new rule will not ban the trade in live elephants to the United States, but it will limit any future live African elephant imports only from countries that are included in Category One under the CITES National Legislation Project. This regulatory change is meant to encourage effective management that enhances African elephant conservation and effective implementation of CITES.
Will the new rule prevent live elephants from being transferred after arriving in the United States?
Not necessarily. Each permit issued by the Service for a live African elephant import will now include a condition that the elephant and its offspring will not be sold or otherwise transferred to another person or location unless authorized by a special purpose permit. Each special purpose permit issued for a live African elephant will require a finding that the proposed recipient is suitably equipped to house and care for the live elephant.
How will the final 4(d) rule benefit African elephants within the United States?
We clarified our domestic regulation that, with a special purpose permit, live African elephants may be sold or offered for sale; delivered; received; carried; transported; or shipped in interstate commerce in the course of a commercial activity. Beneficial factors that must now be met include:
- Ensuring suitable and secure enclosures and available space;
- Environmental enrichment;
- An off-exhibit area with indoor and outdoor accommodations, as appropriate, for animals on public display;
- Provision and water and nutritious food appropriate for the species;
- Staff trained and experienced in providing care and maintenance;
- Veterinary care as needed;
- A proven history of care and management of the same or related species; and
- Adequate funding for long-term care.
Will this final rule undermine conservation efforts and hamper the ability of zoos to effectively manage animal groups to sustain a genetically diverse and biologically sound population?
No. We understand the importance of these reproduction programs to support conservation and education efforts related to African elephants and their habitats, and this final rule does not prohibit such programs. However, it will help to ensure that live African elephants are going only to facilities that are suitably equipped to house and care for them, ultimately assisting the conservation and long-term survival of elephants in the United States and reducing the pressure on African elephants from the wild.
How will the final rule affect the ability of U.S. citizens to engage in sport hunting or import products made from African elephants?
Under the current 4(d) rule for the African elephant, issuance of an ESA threatened species permit to import a sport-hunted trophy of an African elephant first requires we determine that the take of the trophy animal would enhance the survival of the species in the wild (known as an “enhancement finding”).
The new changes to the 4(d) rule will 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. The import of any associated sport-hunted trophy into the United States will continue to be regulated and require an enhancement finding and ESA threatened species import permit.
To further clarify and improve this process, we also added to this final rule a new provision that would establish an annual certification requirement for range countries that export sport-hunted trophies destined for the United States to provide us with information about the management and status of African elephants and the hunting programs in their country. This information from the range countries will enable us to ensure authorized imports contribute to enhancing the conservation of the species and do not contribute to the decline in populations of the species in the wild.
Clarifying the enhancement requirement for the import of African elephant sport-hunted trophies and receiving more regular and detailed information from the range countries will also increase transparency with stakeholders in the decision-making process and expedite application evaluations for the import of African elephant sport-hunted trophies.
Why not impose a complete ban on all import of sport-hunted trophies?
Trophy hunting can generate funds to be used for conservation, including for habitat protection, population monitoring, wildlife management programs, mitigation efforts for human–wildlife conflict, and law enforcement efforts. Some African elephant range countries consider trophy hunting a vital component of the management of African elephant populations.
The International Union for Conservation of Nature's (IUCN's) Guiding Principles on Trophy Hunting as a Tool for Creating Conservation Incentives (Ver.1.0, August 2012) note that well-managed trophy hunting can “assist in furthering conservation objectives by creating the revenue and economic incentives for the management and conservation of the target species and its habitat, as well as supporting local livelihoods” and further, that well-managed trophy hunting is “often a higher value, lower impact land use than alternatives such as agriculture or tourism.”
For sport-hunting to achieve its conservation potential, it must be well-regulated, held accountable, and have additional safeguards in place. Under this final rule, African elephant range countries that export sport-hunted African elephant trophies to the United States will have to provide the Service with an annual certification on the current management and status of their elephants and the hunting programs in their country. This information will highlight what African range countries are currently doing to conserve their elephants and will help inform our decision-making on permit applications for African elephant sport-hunted trophies. Having this information on hand will increase our efficiency in making findings to authorize import permits.
Is the Service implementing regulations beyond its scope and mission concerning the care of captive African elephants in the United States?
No. The standards in this final rule for live African elephants are based on guidance from several CITES meetings over many years. Most recently, CoP19 adopted non-binding guidance for determining whether a proposed recipient of a living specimen of African elephant or southern white rhinoceros is suitably equipped to house and care for it. According to this guidance, “arrangements should be made to ensure that any subsequent sale, donation, or transfer of the animal (internationally or domestically) or of any animal born in the facility is also only to a facility suitably equipped to house and care for the specimen.”
Are there exceptions to the import requirements of African elephant parts?
Yes. We clarified that the CITES National Legislation Project Category One requirement will allow for limited exceptions for import of African elephant parts and products (other than ivory, which is regulated separately) for law enforcement purposes and genuine scientific purposes. These narrow exceptions parallel and will follow the same requirements as the exceptions for law enforcement purposes and for genuine scientific purposes currently established for the import of African elephant ivory.
Does this final rule change what constitutes interstate or foreign commerce in the course of a commercial activity under the ESA?
No. Under the ESA, with limited exceptions, it is unlawful to deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any endangered wildlife or plants (ESA Section 9(a)(1)(E), (a)(2)(C); 50 CFR 17.21(e), 17.61(d)). The same prohibitions may apply to threatened wildlife or plants through an ESA Section 4(d) rule, such as for African elephant.
| Note: Under the provisions of the 4(d) rule, at 50 CFR 17.40(e), all of the prohibitions and exceptions in 50 CFR 17.31 (incorporating the prohibitions for endangered wildlife at 50 CFR 17.21) and 17.32 apply to the African elephant, with certain exceptions for qualifying activities provided in 50 CFR 17.40(e)(2) through (e)(11). Other than activities that qualify for an exception, the following activities are prohibited by 50 CFR 17.40(e): import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any African elephant. In addition, it is unlawful to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) African elephants. It is also illegal to possess, sell, deliver, carry, transport, or ship, by any means whatsoever any African elephant that has been taken illegally. |
The final rule does not change this prohibition, the definition of “commercial activity” in Section 3 of the ESA, nor the definition of industry or trade in 50 CFR 17.3. Whether a proposed transfer of wildlife or plants from one person to another person (e.g., sale, purchase, loan, trade, barter, exchange) is “in the course of a commercial activity” under the ESA is evaluated on a case-by-case basis and is dependent on the specific circumstances of the proposed activity, including whether the transfer is undertaken in the pursuit of any gain or profit (e.g., cash or in-kind) for any party to the intended transfer.
Examples of activities “in the course of a commercial activity,” in addition to buying, selling, or offering to buy or sell, were noted in response to comments in the final rule for African elephants. For example, if listed wildlife is held in captivity, and the owner offers to send the animal to a second owner of listed wildlife as a breeding loan in exchange for half of the offspring produced from the breeding loan. The wildlife has been held or used in the course of a commercial activity—the offer for a breeding loan in exchange for offspring produced from the breeding loan was an intended transfer of wildlife from one person to another person in the pursuit of gain or profit. The results of this example would be the same if the first owner had loaned the animal to the second owner in exchange for monetary compensation. The results of this example would also be the same if the owner received nothing in return for the temporary transfer, but the second owner intended to gain or profit by selling or otherwise commercializing the offspring.
However, noncommercial public institutions, such as noncommercial zoos, may also be able to demonstrate that proposed transfers they intend to engage in with other noncommercial public institutions are for noncommercial purposes. While Congress explained in the legislative history of the ESA that commercial activity “includes trades and exchanges of animals or products from those animals wherever those trades or exchanges are undertaken in the pursuit of any gain or profit,” Congress also specifically discussed that noncommercial zoos could demonstrate that they are engaged in noncommercial activities with listed wildlife, and recognized that animals held by noncommercial zoos “are rarely transferred for commercial purposes.” H.R. Rep. No. 93-740, pp. 23-24, 27 (1973) (Conf. Rep.). For example, if a noncommercial zoological facility is transferring a captive-held live listed wildlife to a different noncommercial zoological facility across state lines in exchange for half of the offspring produced through a breeding loan and each facility is gaining only in the form of wildlife (the intended offspring); the offspring will not be subsequently bought, sold, traded in-kind, or otherwise transferred for gain or profit; both entities involved in the transfer are not-for-profit public institutions (50 CFR 10.12); and any net profits associated with the transfer are used for care of the wildlife or conservation of the species concerned, then those circumstances would be considered by the Service to fall outside the intended scope of the definition of industry or trade in 50 CFR 17.3 and the activity would not be considered “in the course of a commercial activity.”
