[Federal Register Volume 68, Number 159 (Monday, August 18, 2003)]
[Notices]
[Pages 49512-49518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20941]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Draft Policy for Enhancement-of-Survival Permits for Foreign
Species Listed Under the Endangered Species Act
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice.
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SUMMARY: We, the Fish and Wildlife Service, (the FWS) announce a Draft
Policy for ``Enhancement of Survival'' permits for foreign species
listed under the Endangered Species Act of 1973, as amended (ESA). This
policy would provide guidance under which we will consider the issuance
of Section 10(a)(1)(A) enhancement-of-survival permits as incentives to
encourage conservation of foreign-listed species in the wild. Permits
to allow the import of foreign-listed species or their parts or
products would only be considered in certain limited situations if such
action enhances the survival of the species in the wild. Enhancement
must be demonstrated through support of a substantive conservation
program for that species in the range country with a positive benefit
for the species and/or its habitat. The in-situ conservation actions
envisioned by implementing this policy otherwise would not occur or
would be significantly reduced, absent the issuance of permits to
encourage range countries to develop and implement such programs or to
encourage applicants within the United States to become active
participants in range country conservation actions.
The ESA and existing regulations provide full authority for
issuance of these permits. However, in the past we have generally
chosen to limit these types of permits for ESA-listed foreign species.
We now believe there could be a greater conservation benefit by
providing for the import and export of carefully selected ESA-listed
foreign species, or their parts and products, that are obtained from
captive-breeding programs or well-managed conservation programs that
limit removal from the wild and further promote and advance the
conservation of the species within range countries.
This draft policy presents guidance to help the public understand
the requirements for issuance of permits under the ESA. It is not
intended to be prescriptive or to necessarily prohibit or allow any
public or private activity. We seek public comment on this proposed
draft policy.
DATES: Comments on the draft policy must be received by October 17,
2003.
ADDRESSES: Send any comments or materials concerning the Draft Policy
for Enhancement-of-Survival Permits for Foreign Species to the Chief,
Division of Management Authority, U.S. Fish and Wildlife Service, 4401
North Fairfax Drive, Room 700, Arlington, Virginia 22203 (Telephone,
703-358-2093; fax, 703-358-2280; e-mail, [email protected]).
Comments received will be made available to the public and become
part of the file for this policy. You may examine comments and
materials received during normal business hours at the above address in
Arlington, Virginia. You must make an appointment to examine these
materials.
FOR FURTHER INFORMATION CONTACT: Kenneth Stansell, Assistant Director,
International Affairs. (Telephone, 202-208-6393).
SUPPLEMENTARY INFORMATION:
The Application of the Endangered Species Act to Foreign Species
Conservation
Approximately 40 percent of all species listed under the ESA are
foreign species whose natural range occurs outside the United States.
Of these, approximately 80 percent are listed as endangered and 20
percent are listed as
[[Page 49513]]
threatened. Under the ESA's listing process, foreign and domestic
species are treated equally, and the biological criteria used for
determining the appropriate classification of threatened or endangered
species are the same. However, most of the key conservation provisions
of the ESA do not apply to foreign species. Habitat conservation
planning mechanisms, recovery planning and implementation, most Section
7 consultations, and the Section 6 grant-in-aid program do not apply to
ESA-listed foreign species. Even the fundamental conservation tool of
prohibition of take (defined by the ESA as killing, capturing,
collecting, harassing, and related activities) is limited to actions
taken within the United States, the territorial seas of the United
States, or on the high seas (i.e., when committed by persons under the
jurisdiction of the United States). In some situations, listing under
the ESA may provide few, if any, additional benefits and may complicate
the implementation of conservation initiatives under other
international authorities, such as the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES).
The ESA specifically addresses foreign species under Sections 8 and
8A by providing the authority to allow for international convention
implementation for CITES and to enter into other such treaties, and to
otherwise cooperate with other countries for the purpose of conserving
listed species. We have been able to use these authorities to encourage
conservation of ESA-listed foreign species in certain countries where
bilateral conservation programs have been developed, such as the
Pakistan markhor example cited below. However, opportunities for such
activities are limited in comparison to the larger number of ESA-listed
foreign species and the many countries of the world in which they
occur. Where these programs occur, range countries retain ultimate
responsibility and authority for implementing conservation measures for
their resident species.
Several other domestic measures, such as the African Elephant
Conservation Act and the Wild Bird Conservation Act, work to encourage
the conservation of foreign species also listed under the ESA. Under
certain conditions, these statutes allow for the sustainable use and/or
management of foreign species and recognize the limited, ancillary
nature of the United States's ability to influence foreign species
conservation.
Ultimately, the incentives that the United States can employ to
encourage conservation activities for foreign species in other
countries are limited, and we need to consider the use of every
possible means available. In practical terms, one of the few available
means for encouraging the conservation of foreign endangered species is
through our decisions about whether to issue import permits. Permits
can be issued for purposes of scientific research or the enhancement of
survival for endangered species. For threatened species, permits can be
issued for those same purposes as well as for zoological exhibition,
educational purposes, or special purposes consistent with the purposes
of the ESA. The FWS goal of using the permits program to promote the
long-term conservation of animals, plants, and their habitats is
outlined in a recent publication, ``Leaving a Lasting Legacy'' (http://permits.fws.gov).
However, this permitting authority is not being fully used even
though it is internationally recognized as one of the most effective
conservation tools employed by CITES and other multilateral
international agreements. Implementing this policy could encourage
proactive conservation through the use of ``enhancement of survival''
findings to allow for imports that result from programs that
significantly advance the conservation of a species within a given
range country.
This concept is consistent with a Federal District Court's
rationale in Defenders of Wildlife, Inc. v. Watt (1981), which upheld
our decision to lift a prior ban on the importation of kangaroo parts
and products in recognition of and in response to kangaroo conservation
activities undertaken by Australia. The court found that the
``application of the Act to the kangaroo is necessarily collateral in
nature, and the well-being of the species can only be ensured by the
government of Australia.'' Further, the court ruled that ``while the
Defendants have some resources at their disposal (e.g., import
restrictions), to effectuate the Act, the effectiveness of these
resources depends on Defendants' ability to encourage Australia to
protect the kangaroo.'' The potential for removal of the import ban
then imposed under the ESA was an important aspect of these
negotiations. It was used by the United States as an incentive for the
imposition of a more rigorous and meaningful conservation program by
Australia.
In Defenders, the court recognized that we had no control over the
species or its natural habitat. Consequently, our ability to protect
the kangaroo was limited to encouraging, or creating incentives for
Australia to implement programs designed to ensure the species' well-
being. Since the United States was an important market for kangaroo
leather parts and products, our decision to lift the import ban was
essential to encourage Australia to implement stricter conservation
measures for kangaroos. Lifting the ban ultimately enhanced the status
of the kangaroo in Australia and achieved the conservation objectives
of the ESA for the species.
CITES and the Endangered Species Act as Conservation Tools
Many foreign species of concern to the United States are protected
not only under the ESA but, also under CITES, a related but distinct
conservation tool that regulates the international trade in certain
wild plants and animals. Under CITES, species may be included, after
approval by a two-thirds majority of CITES parties, in one of two
Appendices, depending on the degree to which international trade
impacts the survival of the species. Appendix I includes species
``threatened with extinction'' and imposes a general ban on trade for
primarily commercial purposes. Appendix II allows controlled commercial
trade in species that may become threatened with extinction without
such controls. The import of an Appendix-I species is allowed if the
purpose of the import is not primarily commercial and is not considered
to be detrimental to the survival of the species. The import of an
Appendix-II species is allowed if the species or its parts and products
have been legally acquired and the export is not considered to be
detrimental to the survival of the species. Thus, in all cases CITES
requires that a ``no detriment'' finding be made for each species and
country involved, and that appropriate CITES permits be issued.
The text of the CITES treaty provides for certain exemptions from
the restrictions on commercial trade in Appendix-I species. Through
more than 20 years of interpretation and implementation, the CITES
parties have agreed that the treaty provides significant flexibility in
determining what kinds of activities are considered to be detrimental
to the survival of Appendix-I species. Article VII, paragraph 4, of the
treaty provides that Appendix-I species meeting the CITES definitions
of ``bred in captivity'' or ``artificially propagated'' may be treated
as if they are listed in Appendix II, removing the ban on commercial
trade. Likewise, under certain conditions and with established quotas,
CITES allows
[[Page 49514]]
the export of sport-hunted trophies of Appendix-I species. While trade
in such species may not be detrimental, and noncommercial trade can be
allowed, the CITES treaty includes no requirement that such actions
directly address the issue of enhancing the conservation of the species
in the wild.
CITES also allows for the transfer from Appendix I to Appendix II
of certain populations of species that can be demonstrated to benefit
from ``ranching,'' for purposes of trade. A ranching operation must
primarily benefit conservation of local populations of the species in
the wild. Ranching involves the development of a management program for
a specific population of an Appendix-I species, such as Nile crocodiles
in Zimbabwe. Under this program, crocodile eggs are taken from the wild
and hatched in captivity, and then some juvenile crocodiles are
returned to the wild, while others are retained for commercial
activity. This provides an incentive to protect and recover the wild
population.
For native species listed under the ESA, the Congress has directed
that they be automatically protected from take, in addition to
prohibitions against commerce and trade. A foreign ESA-listed species
is protected from importation into the United States and from foreign
commerce by American citizens, but not from take by an American within
a foreign country. This reflects the limited extent to which domestic
U.S. law applies overseas. We have a very different degree of control,
and thus a very different ability to influence conservation, in other
sovereign countries that have their own national laws and policies.
The ESA also provides us with permitting authority in Section
10(a)(1)(A) to allow for otherwise prohibited activities for listed
species. This authority allows for the issuance of permits ``for
scientific purposes, or to enhance the propagation or survival'' of the
listed species, as well as other purposes for threatened species. The
net result is that the ESA imposes different and more stringent
permitting standards for the importation of an endangered species than
is required under Appendix I of CITES. Under CITES, the issue is
whether the importation of an Appendix-I foreign species is not
detrimental to the survival of the species. Under the ESA, the issue is
whether the importation of a foreign species enhances the survival of
the species.
Special Rule Authority for Foreign Species Listed as Threatened
The ESA allows for the promulgation of special rules under Section
4(d) for threatened species. Special rules can be used to authorize
permits for activities consistent with the specific conservation needs
of a species and may be less restrictive than for endangered species.
Using this Section 4(d) authority, we have issued regulations to allow
for the importation of sport-hunted trophies of certain foreign species
listed as threatened. Likewise, we have lifted restrictions on the
import of products from several foreign species listed as threatened
when we determined that lifting the import ban would be an incentive
for the development of a more rigorous conservation program in the
range state.
Examples of the use of the special rule authority include African
elephants and saltwater crocodiles. The African elephant is listed as
threatened with a special rule that allows for the import of sport-
hunted trophies where it can be clearly demonstrated that the range
country has established and is implementing a conservation program
using regulated sport hunting as a tool to enhance the survival of the
species. Several species of salt water crocodiles from Africa and
Australia are listed as threatened with a special rule that allows the
import of crocodile parts and products from certain managed populations
to encourage and help create an incentive for the development of more
rigorous conservation programs in affected range countries.
The need exists to address legitimate conservation issues affecting
foreign ESA-listed species on a case-by-case basis, without sole
reliance on a reclassification from endangered to threatened status so
that Section 4(d) may be applied. The benefits of an innovative
conservation program should not be limited solely to species that have
already met the standard for reclassification to threatened status.
Based on our experience in international conservation efforts, we
believe that in some limited situations, the only way for the United
States to participate in programs to improve the status of an
endangered species is to allow import of specimens, parts, or products
from well-regulated taking programs, if the programs are designed to
promote conservation of the species in the wild. By making such
determinations on a case-by-case basis, we expect that issuance of such
permits will facilitate further conservation efforts that could lead to
reclassification of a species from endangered to threatened, or off the
ESA list completely.
Enhancement Findings for Foreign Species Listed as Endangered
As indicated, we have been able to make the necessary ``no
detriment'' CITES finding and the ESA's ``enhancement of survival''
finding for some activities that involve the direct removal of
individuals from the wild for several foreign species listed in
Appendix I that are also listed as threatened under the Act. While
Section 10(a)(1)(A) of the ESA actually allows for the issuance of
import permits to enhance the survival of foreign species listed as
endangered, if the necessary enhancement finding can be made, we have
historically interpreted the enhancement standard for foreign
endangered species fairly narrowly. This practice has resulted in the
routine denial of applications for the import of foreign species listed
as endangered if the import would cause the killing of any individual
in the wild, even in those situations involving a CITES-approved export
program or other substantive conservation program. This has included
the denial of applications for the import of parts and products from
ranched populations, import of specimens meeting CITES requirements for
specimens bred in captivity or artificially propagated for commercial
purposes, sport-hunted trophies from countries with CITES-approved
quotas for the species involved, and international movement of live
zoological specimens.
The traditional, narrow approach to enhancement findings for
actions that would result in the killing or removal from the wild of a
foreign endangered species has precluded the use of the import permit
as a proactive tool and incentive for foreign species conservation. We
now believe that in some situations we could achieve a greater
conservation benefit by providing for the importation of carefully
selected foreign endangered species, or threatened species lacking (or
in lieu of) a Section 4(d) rule, in exchange for a substantive and
comprehensive conservation plan that offsets a limited take and further
promotes the conservation of the species within the range country. An
enhancement finding could be used as a more flexible proactive
conservation tool to encourage the development of such substantive
conservation plans for foreign species listed as endangered. Such an
approach would help us expand the effectiveness of the ESA in meeting
the growing habitat protection needs of foreign wildlife. Further, by
[[Page 49515]]
limiting the scope of such enhancement-of-survival findings to the
development and implementation of foreign species management plans by
the relevant range country, we can create a real incentive for foreign
nations to establish programs that conserve both wildlife and habitat
through the use of this approach in the most appropriate and compelling
situations.
Examples of Potential Application
Several current examples serve to illustrate the potential
application of this new proposed enhancement-of-survival policy. These
include the Morelet's crocodile in Mexico; the Asian bonytongue fish in
Indonesia, Thailand, and Malaysia; the wood bison in Canada; the
markhor in Pakistan; and the Asian elephant in India, southeast Asia,
and China. These examples represent species with similar listing status
under the ESA but significantly different conservation issues and
opportunities under the proposed policy.
Morelet's Crocodile
The Morelet's crocodile (Crocodylus moreletii) is a freshwater
crocodile found along the Atlantic coast of Mexico, Guatemala, and
Belize. It is listed as endangered throughout its entire range and is
also listed in Appendix I of CITES. These listing actions were deemed
warranted due to substantial population declines as a result of habitat
loss and poaching. All three range countries have enacted laws
protecting the Morelet's crocodile within their territories. However,
given the current population status and continuing threats, it is
doubtful that the species would qualify under the ESA for
reclassification.
Part of Mexico's conservation program for this species allows a
regulated removal of live specimens from the wild to establish parental
stock for captive-breeding operations. This practice is part of a
comprehensive conservation and management program for Morelet's
crocodiles, which includes sustainable use of the species to encourage
its conservation. As part of that program, a significant number of
young are annually returned to the wild, and enhancement actions are
focused on the wild populations. As a result of this management
program, Mexico had been able to register its captive-breeding
facilities with CITES to allow international commercial trade. In the
case of specimens originating from CITES-registered breeding
facilities, the species is treated as a CITES Appendix-II species, and,
therefore, only a CITES export permit issued by the exporting country
is necessary. However, this international trade is still excluded from
the United States because of the species' endangered status under the
ESA.
The FWS recognizes that crocodilian species managed as a
sustainable resource in some cases can be utilized for commercial
purposes while not adversely affecting the survival of the species.
When certain positive conservation conditions have been met, we have
acted to allow utilization and trade from managed populations of the
American alligator (Alligator mississippiensis), Nile crocodile
(Crocodylus niloticus), and saltwater crocodile (Crocodylus porosus).
Under the proposed policy, we would consider allowing the importation
of products produced by these captive-breeding facilities if they can
demonstrate a clear enhancement of the wild population. The potential
for trade with the United States, a major importer of leather products,
could further encourage Mexico to intensify its conservation efforts
for this species in the wild to meet the stricter import requirements
under the ESA.
Straight-horned Markhor
The Pakistan population of straight-horned markhor (Capra falconeri
jerdoni) is listed as endangered under the ESA and included in Appendix
I of CITES. A sport-hunted export quota for Pakistan was approved by
CITES in 1997. While reclassification of the subspecies within Pakistan
under the ESA is not considered likely due to continuing concerns about
the overall status of the subspecies, the Torghar Hills region of
Pakistan has a successful community-based management program that has
significantly enhanced the conservation of local markhor populations.
Under this example, this proposed policy could allow consideration of
applications for the importation of sport-hunted trophies from this
population, if the necessary enhancement finding could be made, as an
incentive to continue and expand the conservation program for this
species.
In the early 1980s, local leaders of the Baluchistan Province
became alarmed at the dramatic decline in markhor and other wildlife
populations in the Torghar Hills region. The decline was attributed to
a significant increase in poaching. In 1984 they sought assistance from
professional wildlife biologists in the United States on the design of
a scientifically based management program for the markhor and other
species, and the Torghar Conservation Project was initiated. The
project was simple. Local tribesmen were requested to refrain from
hunting in exchange for being hired as salaried game guards to prevent
poachers from entering the Torghar Hills region. Game guard salaries
and other costs of the project would be defrayed entirely by trophy
fees paid by foreign hunters to take a small, strictly controlled,
annual quota based on the best biological information available on the
status of the markhor and other wildlife species in the area.
Currently, the project employs more than 50 local game guards,
protecting approximately 1,000 km\2\ of habitat. The project has
eliminated poaching in this core protection area, and, as a result,
markhor populations, virtually extirpated by 1984, have increased
steadily. Since 1994, the markhor population has doubled and is
considered to be of adequate size and condition to sustain a small (1-
2% of the population) annual trophy harvest. Systematic field surveys
have been conducted in the region since 1994 as part of the management
program, supported in part by the FWS through its Wildlife Without
Borders-India program. The project was maintained informally until
1994, when an officially registered non-governmental organization, the
Society of Torghar Environmental Protection (STEP), was established to
administer the project. Currently participation in this program is
limited to foreign hunters primarily from Europe. Allowing a limited
number of U. S. hunters an opportunity to import trophies taken from
this population could provide a significant increase in funds available
for conservation and would provide a nexus to encourage continuation
and expansion of the project into other areas.
Asian Bonytongue
The Asian bonytongue (Scleropages formosus) is a tropical
freshwater fish native to Indonesia, Thailand, and Malaysia, and
islisted as endangered under the ESA and included on Appendix I of
CITES. Although the species was historically harvested for consumption,
its demand for the aquarium pet trade, along with other factors such as
habitat loss, resulted in significant declines throughout its range.
Reclassification of the species under the ESA is not likely due to
continuing concern for its overall status. However, since the greatest
single threat to the species is illegal collection for the pet trade,
captive propagation that results in a controlled legal supply of
specimens could significantly reduce the pressure on wild populations.
Additionally, the breeding of native species in captivity for
commercial
[[Page 49516]]
purposes may, in some cases, facilitate the eventual release to the
wild of a percentage of the progeny from such operations.
In 1986, efforts began on the development of captive propagation
techniques for the Asian bonytongue. In 1992, the first captive-
breeding facility was registered under the requirements of CITES, and
legal exports began. There are currently 28 registered breeding
facilities in these three countries, reportedly with an annual
production level of around 300,000 fish. Each exported specimen is
marked with a coded microchip to assist law enforcement efforts to help
ensure that only legally produced fish are traded. The CITES
requirement for certifying facilities as bred in captivity is designed
to remove collection pressure on wild populations and ensure that trade
is not detrimental to the survival of the species, but CITES does not
require in-situ conservation projects.
Since the approval of the first captive-breeding facility, we have
denied several permit applications for the import of captive-bred Asian
bonytongue. As one of the world's largest importers of aquarium fish,
the United States could play a significant role in encouraging
conservation of the Asian bonytongue through the issuance of permits if
we require, as a condition of issuance of an import permit, that the
specimens are bred in captivity and, a program is established to
conserve the species in the wild . Our willingness to consider allowing
import of captive-bred fish under ``enhancement of survival'' permits
could provide an incentive for development of new conservation
programs.
Wood Bison
The wood bison (Bison bison athabascae), native to Canada, is
currently listed in CITES Appendix II and as an endangered species
under the ESA. Because the wood bison is an Appendix-II species,
Canadian wildlife authorities are not required to establish a quota for
the export of live or trophy animals. Therefore, Canada is actively
managing their bison population with a variety of management
techniques, including limited sport-hunting. The FWS is currently
evaluating whether downlisting the species is warranted under the ESA;
however, this process is time consuming. Under this proposed policy, if
an enhancement finding could be made based on Canada's present
management practices, a limited number of sport-hunted trophies and
live animals could be imported to further the conservation and recovery
of the species while the downlisting process continues. A significant
demand exists for both live animals and sport-hunted trophies in the
United States. By issuing a limited number of permits that would
require continuing conservation of the species in the wild the species
would benefit.
The free-ranging population of about 5,000 wood bison is restricted
to 11 herds in the Canadian provinces of Manitoba, Alberta, British
Columbia, Yukon, and the Northwest Territories. As of 2000,
approximately 2,500 of the free-ranging animals were in 7 disease-free
herds. There are also around 400 animals in the Elk Island and Hook
Lake Salvage captive-held disease-free herds that will be used for
restocking and recovery purposes. The remaining bison in four herds in
the Wood Buffalo National Park area are not disease free. It is
estimated that the provincial and First Nation herds (diseased and
disease-free combined) will double by 2004 at the present rate of
increase. The Canadian recovery program goal is the establishment of 4
free-roaming, disease-free herds of 400 animals each. The recovery team
estimates this goal will be achieved by the end of 2003. Throughout
Canada and the United States, 700 to 1,000 animals are in private
ownership. There are no wild or free-ranging populations in the United
States.
The provincial and First Nation herds are managed with
consideration for the national wood bison objectives: (1) Re-establish
viable, healthy, free-ranging populations where possible in the
original range; (2) ensure the genetic integrity of wood bison; (3)
restore healthy herds for long-term sustainable use (for rural
communities); and (4) encourage long-term cooperative management
programs in which rural communities and aboriginal people play an
integral role. Both the genetic management of the herds and the
community programs involve limited sport hunting of surplus animals.
Because of the current listing of wood bison under the ESA, we have
not issued import permits for sport-hunted trophies. Under this
proposed policy, however, we could take into account Canada's excellent
management of the bison. If, by reviewing the management program that
has been established by the Canadian Government and the First Nations,
we can determine that the importation of sport-hunted trophies could
further enhance the survival of the species, then we could consider the
issuance of a limited number of permits. As with most conservation
programs around the world, work is limited by the availability of funds
to carry out the goals of the program. Allowing a limited number of
imports of sport-hunted trophies and live animals into the United
States could provide a significant increase in funds available for
conservation of the species in the wild, and would provide a nexus to
encourage continuation and expansion of the project into other areas.
Asian Elephant
The Asian elephant (Elephas maximus) is listed as endangered under
the ESA and in Appendix I of CITES. The Asian elephant historically
ranged throughout India, Southeast Asia, and China. However, due to
extensive habitat loss and poaching, its numbers have been dramatically
reduced and are restricted to isolated populations within its range. In
many areas, the species has been extirpated. Given its current status,
it is very unlikely that the species could be downlisted under the ESA.
In addition, although the Asian elephant is provided the protection of
listing in Appendix I, only a limited number of other activities under
CITES contribute to ensuring the species' survival. While the listing
of the species in Appendix I does control international trade, this
listing provides little for the conservation for the species within its
range. Under this proposed policy, the permitting process could
contribute to the enhancement of the species through the consideration
of the importation of live animals when linked with conservation
efforts within the elephant's range.
The Asian elephant is one of the more recognized animals to people
from around the world due to exposure to the species through circuses
and zoos. The United States has a relatively large population of
captive Asian elephants. However, captive breeding has not been very
successful, and the breeding stock is getting old and may soon be
unable to breed. While offspring, particularly first generation, have
been born, second-generation offspring have not had reproductive
success. Therefore, currently, given the breeding animals available, it
would appear that the captive Asian elephant population within the
United States will continue to decline. This decline has raised a
significant demand among the zoo and circus community to obtain
additional stock from Asia. In relation to this, the number of
elephants available for export within Asia is increasing due to the
capture of problem animals and the decline in the use of elephants for
traditional labor, such as timber harvest. Many countries within the
elephants' range are facing a crisis due to the inability to handle
these ``surplus'' animals.
[[Page 49517]]
Through the implementation of this proposed policy, it would be
possible to contribute to the species' survival in the wild. By
providing an opportunity for facilities within the United States to
apply for and obtain import permits for Asian elephants, on the grounds
that the importation provides direct conservation benefits to the wild
population, the ESA could be used to promote in situ conservation
projects that are funded and supported by U.S. zoos and circuses. In
addition, under this proposed policy, export of live animals or genetic
material to promote captive breeding in other countries could also be
tied to conservation work within the species' natural range.
Other Listed Species
The species in the above examples are all listed as endangered
under the ESA, however, we believe that certain threatened species
could also benefit from this proposed policy. While it is true that a
significant number of permits issued for threatened species are issued
for other purposes, the FWS has denied permits for enhancement for
these species. This policy could be used to promote and encourage
activities that would provide for in-situ conservation programs for
threatened, as well as endangered, species.
Policy on Permits for Enhancement of Survival
1. What Is the Purpose of This Policy?
This policy expands the conditions under which we will consider the
issuance of import permits under Section 10(a)(1)(A) of the Endangered
Species Act (ESA), and under our existing regulations found in the Code
of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32 for enhancement
of survival of foreign species listed under the ESA as endangered and
threatened respectively. These permits would be available only in
certain carefully limited situations where the range country and/or the
applicants have established a substantive conservation program for the
species and the import or export meets all relevant requirements and
resolutions of the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES). The ultimate goal of permits
issued under this policy would be to provide incentives to encourage
developing countries to conserve foreign ESA-listed species and their
habitats, and to promote in situ conservation efforts by applicants.
This policy would provide incentives recognizing and supporting
those range countries that have demonstrated significant commitment to
implementing conservation programs for endangered species. Under this
policy the necessary permit finding of ``enhancement of survival''
under the ESA would take into consideration the overall net impact,
both direct and indirect, of allowing the import or export of the
species or its parts or products, as offset by the implementation of a
conservation program for that species in the range country.
The listing of a foreign species under the ESA provides recognition
of its plight and generally prohibits the import of the species or its
products into the United States. When such import would involve take of
animals from the wild or commercial trade, the prohibition on import
may be in conflict with ranching or captive-breeding operations that
have been authorized by CITES. The opportunities to influence actual
species conservation in other countries are limited, since key
provisions of the ESA, such as recovery, consultation, and prohibitions
on take, do not apply overseas. The application of the ESA to foreign
species, and thus the United States' ability to influence their
conservation, is collateral in nature, with range countries retaining
ultimate authority and responsibility for species conservation.
Moreover, the effectiveness of those tools that the ESA does provide
for foreign species--such as import restrictions--often depends on
whether their use can help encourage the range country to protect the
species.
In recent years many developing countries have seen sustainable-use
programs as the way to conserve wildlife species and their habitats in
the face of increasing competition with other land uses. We have used
the flexibility provided for threatened species in Section 4(d) of the
Act to adopt special rules allowing for imports of certain sport-hunted
species, such as African elephants and leopards, and the import for
commercial purposes of certain crocodile parts and products. Under this
expanded policy, we will broaden this concept on a limited, case-by-
case basis, through the issuance of Section 10(a)(1)(A) import permits
for listed species--but only if the necessary enhancement-of-survival
finding can be made, in addition to all of the findings required by the
CITES treaty and any relevant resolutions adopted by CITES Parties for
species also covered by CITES.
This policy would provide a mechanism to consider the issuance of
permits under certain circumstances for carefully selected foreign ESA-
listed species in response to a conservation plan that offsets any
limited take from the wild and further promotes the conservation of the
species. Such findings would serve to create a real incentive for
foreign nations to establish programs that conserve both wildlife and
their habitats. The policy limits the scope of such enhancement-of-
survival findings to the development and implementation of management
plans in the range country only in appropriate and compelling
situations, and where applicants can show direct in-situ conservation
benefit from the proposed activity. This policy would not apply to
situations that were not fully consistent with CITES. It would also not
apply where we have adopted or are developing a separate policy on
import or export permits for a particular species (such as our Policy
on Giant Panda Permits, published in the Federal Register on August 27,
1998; 63 FR 45839).
2. What Are the Permit Application Procedures and Issuance Criteria?
For consideration under this policy guidance, you must follow the
current application process and issuance criteria as described in our
regulations at 50 CFR part 17.22, for endangered species, and 50 CFR
part 17.32, for threatened species. This application process is
approved by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act; the OMB control number is
1018-0093.In applying the issuance criteria for applications to import
a listed species or its parts or products, we may take into account how
that action may relate to the implementation of a management program
for that species in the range country, including carefully regulated
sport hunting and commercial captive breeding and ranching, and whether
the activity has been authorized under CITES, when so listed.
Consistent with the ESA and 50 CFR 17.22, notice of each
application for a permit for endangered species will be published in
the Federal Register. Each notice will invite the submission from
interested parties, within 30 days after the date of the notice, of
written data, views, or arguments with respect to the application,
prior to issuance of any enhancement-of-survival permit pursuant to
this policy.
3. How Will This Policy Be Consistent With CITES Requirements and
Resolutions or Range Country Management Plans?
For us to consider your permit application under this policy, at
least
[[Page 49518]]
one of the following conditions must have been met:
a. The species (or certain populations of the species) is listed in
CITES Appendix II, and all trade is in accordance with all requirements
in CITES Article IV, as well as in accordance with any relevant
resolutions adopted by the CITES Conference of the Parties; or
b. The species (or certain populations of the species) is listed in
CITES Appendix I, and (1) sport-hunted trophies, or other specimens,
are traded in accordance with all requirements in CITES Article III, as
well as in accordance with all relevant resolutions and quotas adopted
by the CITES Conference of the Parties and supported by the United
States; or (2) commercial trade in ranched or captive bred specimens is
in accordance with Article VII.4 of CITES and with any relevant
clarifying resolutions and quotas adopted by the CITES Conference of
the Parties; or
c. The species (or a certain population of the species) is covered
under one or more conservation programs in the range country that have
support of the relevant management authorities, and these programs
contribute directly to enhance the survival of the species in the wild.
4. What Benefit to the Species Must Be Shown?
In addition to the requirements of Part 3 above, you must also
provide sufficient information for us to be able to reasonably conclude
that a conservation program has been established in the range country
for the species that is likely to provide a net benefit to the
conservation of the species if the import of such species or its parts
or products is allowed into the United States. You must also
demonstrate that the application meets all the issuance criteria found
in our regulations at 17.22(a)(2) and 17.32(a)(2), which among other
things require that ``. . . the purpose for which the permit is
required would be likely to reduce the threat of extinction facing the
species . . .'' Inherent in this context is a substantial contribution
to the conservation of the species in the wild, through direct or
indirect means. Your application must involve an activity that meets
the enhancement standard of Section 10(a)(1)(A) for any import finding
for a listed species under the ESA, even in situations where such
imports are not required to meet the CITES standard of ``no
detriment.'' For example, this will include a determination that
imports of ranched and captive-bred specimens not only meet the
requirements of Part 3 of this policy, but also must be derived from a
program that provides for conservation of the species in the wild.
A conservation program in the range country must be designed to
enhance the survival of a species in a manner and at a level such that
the objective of the program is either to maintain, or restore,
biologically viable population levels for the long term. The
conservation program would address relevant determinations of the
productive capacity of the species and its ecosystem, to ensure that
cumulative use does not exceed those capacities or the ability of the
population to reproduce, maintain itself, and perform its role or
function in its ecosystem. The sustainability of the population may be
accomplished through the implementation of conservation strategies,
consistent with the biological characteristics of the species and will
take into account instances where limited biological data exist. All
determinations will be made on a case-by-case basis for each species.
Required Determinations
Since the purpose of this draft policy guidance is to clarify
existing regulatory authority and provide the public with an
opportunity for us to consider issuance of permits for certain
activities, we have determined that this policy would not result in
significant costs of implementation to the Federal Government or the
non-Federal program participants. We have also determined that the
issuance of the proposed policy is categorically excluded under the
Department of the Interior's NEPA procedures in 516 DM 2 Appendix 1.10.
Based on the Service's evaluation of the public comments received, if a
determination is made that an environmental assessment is required in
accordance with Departmental procedures, an environmental assessment
will be prepared for public review.
Public Comments Solicited
We request comments on our Draft Policy on Enhancement of Survival
Permits. Particularly sought are comments on the issue of the
relationship of the ESA to foreign-listed species and ways in which the
ESA can be used to encourage the conservation of such species in the
range country. We will take into consideration the comments and any
additional information received by the Service by date specified above
in DATES.
Dated: June 27, 2003.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 03-20941 Filed 8-15-03; 8:45 am]
BILLING CODE 4310-55-P