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November 29, 2022

USFWS Proposes Revision to African Elephant 4(d) Rule

The United States Fish and Wildlife Service (USFWS) recently proposed to revise the rule for the African elephant promulgated under Section 4(d) of the Endangered Species Act (ESA). Section 4(d) applies to species that have been listed as threatened under the ESA and establishes a special rule for certain threatened species.

According to the USFWS, the proposed revisions are intended to address an apparent rise in international trade of elephants and elephant parts. The USFWS’s proposed revisions would change the standards for certain elephant imports into the United States and, according to the agency, clarify the existing enhancement requirements for the import of sport-hunted trophies. 

The USFWS’s proposal includes the following key changes:

  • Removes the exception in 50 CFR 17.40(e)(2) from prohibitions for import, export, interstate commerce, and foreign commerce in live African elephants to always require a permit under 50 CFR Part 17.
  • Establishes standards used to evaluate “enhancement” under the ESA for the import of live African elephants under a new proposed 50 CFR 17.40(e)(10)(i). 
  • Requires “suitably equipped to house and care for” findings for permitted transfers after import to ensure live elephants are going only to facilities that are suitably equipped to care for them.
  • Establishes an annual certification requirement for range countries that allow for export of live African elephants destined for the United States under a new proposed 50 CFR 17.40(e)(10)(ii). 
    • This proposal will not change the current enhancement requirement but clarifies how that requirement can be met. 
  • Establishes an annual certification requirement for range countries that export sport-hunted trophies to the United States under a new provision to 50 CFR 17.40(e)(6).
  • Incorporates CITES National Legislation Project category designations into the acceptance of imports under 50 CFR 17.40(e)(2), (e)(6), and (e)(10) under a new proposed 50 CFR 17.40(e)(10)(ii).

The proposed changes will not alter the USFWS’s current practice of evaluating permit requests on an application-by-application basis. 

Interested parties may comment on the proposed changes to the 4(d) rule on or before January 17, 2023, by one of the following methods: 

  • Electronically, via the Federal eRulemaking Portal. Enter docket number FWS-HQ-IA-2021-0099.
  • Via email to
  • Via US Mail, addressed to:

Public Comments Processing, Attn: FWS-HQ-IA-2021-0099 
US Fish and Wildlife Service, MS: PRB/3W 
5275 Leesburg Pike, Falls Church, VA 22041-3803

The USFWS will also hold a virtual public hearing via Zoom on January 5, 2023, from 1:00 to 4:00 p.m. EST.

If you have any questions regarding the content of this alert, please contact Mike Oropallo or Rick Capozza, Outdoor & Wildlife Team co-leaders, at and, respectively; Tom Paul, counsel, at; Dan Krzykowski, associate, at; or another member of the firm’s Outdoor & Wildlife Team.

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