Document 6pz8ZDbNRdo4R2eywgXOmxJg

From: To: Subject: Date: Attachments: Wilkinson, Susan Charisa Morris Fwd: ACTION REQUIRED COB 11/24/2017 - DOI Regulations Review Comment Monday, November 13, 2017 4:36:38 PM DOI-2017-0003-0214.pdf DQI-2017-0003-0215.pdf FYI -----------Forwarded message-----------From: Cash, Marcia <marcia_cash@fws.gov> Date: Mon, Nov 13, 2017 at 4:33 PM Subject: ACTION REQUIRED COB 11/24/2017 - DOI Regulations Review Comment To: Anissa Craghead <anissa_craghead@fws.gov> Bridget Fahey <bridget_fahey@fws.gov> Craig Aubrey <Craig_Aubrey@fws.gov> Gary Frazer <gary_frazer@fws.gov> Gina Shultz <Gina_Shultz@fws.gov> Jeff Newman <jeff_newman@fws.gov>, Katherine Garrity <katherine_garrity@fws.gov> Kayla Miller <kayla_miller@fws.gov>, Marcia Cash <marcia_cash@fws.gov> Martha BalisLarsen <martha_balislarsen@fws.gov> Susan Wilkinson <susan_wilkinson@fws.gov> There are only two comments received so far this month that need reviews. There may be additional comments that come in for the December 1st report. If so, I will forward to you as soon as possible. I get the sense that the Task Force understands the deadline pressures - especially for comments that arrive late in the month. Provide what you can for me, and I will keep track of dispositions that need to be rolled forward to the next reporting period. The comment summaries and the disposition you provide will be reviewed by the Department's Regulatory Reform Task Force. Please review the comments attached to this message that pertain to your program/office and provide a brief disposition of how you plan to address the comment to Marcia Cash in PPM by COB on Friday, November 24th. This report will go to the Director's office at noon on Monday, November 27, 2017. Any responses I get after that time will be included on January's report. Examples of possible disposition actions may include, but are not limited to, the following: the Service is reviewing and evaluating the comment and will determine the appropriate action after further internal deliberation we are considering preparing a formal response we are considering initiating a review of the pertinent regulations we are considering working with other affected bureaus to determine an appropriate action no action needed - comment is too vague to warrant a response. Let me know if you have any questions. And thanks again for your cooperation. Marcia Cash DOI Regulations Review - FWS Project Manager eRulemaking / FDMS Administrator eERDMS - eRecords - BPHC Representative U.S. Fish and Wildlife Service Division of Policy, Performance, and Management Programs (PPM) (Formerly Division ofPolicy and Directives Management - PDM) 5275 Leesburg Pike, MS: BPHC Falls Church, VA 22041-3808 Telephone: 703-358-2013 Fax: 703-358-1997 Susan Wilkinson Division of Policy, Performance, and Management Programs U.S. Fish and Wildlife Service Headquarters 5275 Leesburg Pike, MS: BPHC Falls Church, VA 22041-3803 703-358-2506 Document Metadata:DOI-2017-0003-0214 Document Details Docket ID: DOI-2017-0003 Docket Title: Document File: Docket Phase: Regulatory Reform Executive Order 13777 * B Advance Notice of Proposed RuleMaking Phase Sequence: 1 Original Document ID: DOI-2017-0003-DRAFT-0216 Current Document ID: DOI-2017-0003-0214 Title: FWS-0071 Number of Attachments: 1 Document Type: PUBLIC SUBMISSIONS * Document Subtype: Comment on Document ID: DOI-2017-0003-0009 Comment on Document Title: Comment on This Document for U.S. Fish and Wildlife Service (FWS) Regulatory Reform Status: Posted Received Date: 11/01/2017 * Date Posted: 11/02/2017 Posting Restriction: No restrictions Submission Type: Web Number of Submissions: 1 * Document Optional Details Status Set Date: 11/02/2017 Current Assignee: NA Status Set By: Calhoun, John (DOI) Comment Start Date: 06/22/2017 Comment Due Date: Tracking Number: lkl-8zjv-rp0j Total Page Count 1 Including Attachments: Accept Comments after the Comment Due Date: Submitter Info Comment: First Name: Middle Name: Last Name: ZIP/Postal Code: Email Address: Organization Name: Submitter's Representative: Government Agency Type: Government Agency: Category: Cover Page: No Attached please find comments from the National Endangered Species Act Reform Coalition (NESARC) providing recommendations to the Department of the Interior on improving implementation of regulatory reform initiatives and policies and identifying regulations for repeal, replacement, or modification. The attached comments provide recommendations on improvements that the U.S. Fish and Wildlife Service should make to regulations under the Endangered Species Act. * Tyson Kade National Endangered Species Act Reform Coalition (NESARC) B ^NESARC NATIONAL ENDANGERED SPECIES ACT REFORM COALITION 1050 Thomas Jefferson Street. NW 6th Floor Washington. DC 20007 tel. 202.333.7481 fax 202.338.2416 www nesarc.org November 1, 2017 Mr. Mark Lawyer Office of the Executive Secretariat Attn: Reg. Reform, DOI-2017-0003-0009 U.S. Department of the Interior 1859 C Street NW Mail Stop 7328 Washington, DC 20240 Submitted via Federal eRulemaking Portal: http://www.regulations.gov Re: NESARC Comments on Regulatory Reform and Reducing Regulatory Burdens Dear Mr. Lawyer: On June 22, 2017, the Department of the Interior ("DOI") requested comments on improving implementation of regulatory reform initiatives and policies and identifying regulations for repeal, replacement, or modification.1 The National Endangered Species Act Reform Coalition ("NESARC") respectfully provides the following comments and recommendations on improvements that the U.S. Fish and Wildlife Service ("FWS") should make to regulations under the Endangered Species Act ("ESA"). NESARC is the country's oldest broad-based, national coalition dedicated solely to achieving improvements to the ESA and its implementation. As detailed in the membership list attached to these comments,2 NESARC includes agricultural interests, cities and counties, commercial real estate developers, conservationists, electric utilities, energy producers, farmers, forest product companies, home builders, landowners, oil and gas companies, ranchers, realtors, water and irrigation districts, and other businesses and individuals throughout the United States. NESARC and its members are committed to promoting effective and balanced legislative and administrative improvements to the ESA that support the protection of fish, wildlife, and plant populations as well as responsible land, water, and resource management. 1 Regulatory Reform, 82 Fed. Reg. 28,429 (June 22, 2017). 2 See Appendix A. National Endangered Species Act Reform Coalition Comments on Regulatory Reform November 1, 2017 I. Recommendations for Regulatory Improvements to the ESA The ESA was originally enacted in 1973, and the statute has remained largely unchanged and unauthorized for nearly a quarter of a century. The operative statutory provisions are implemented through regulations promulgated by the FWS and the National Marine Fisheries Service ("NMFS") (collectively, the "Services"). While there have been piecemeal revisions to these regulations over the years, implementation of the ESA would benefit significantly from a holistic review of the regulatory structure. By conducting this type of review, FWS, in collaboration with NMFS, can best identify and incorporate efficiencies and improvements that have been learned during the past 40 years of ESA implementation.3 The listing of a species as threatened or endangered and the designation of critical habitat have significant regulatory, economic, and other consequences. Private landowners, state and local governments, commercial entities, and other parties are required to conduct Section 7 consultation on any Federal action that may affect a listed species or its critical habitat or seek a permit under Section 10 to avoid liability for a prohibited take of the species. While the goal of the ESA is to ultimately recover and delist these species, there has only been limited success to date. There are regulatory improvements that can and should be made to each of these ESA components to alleviate unnecessary economic impacts on the regulated community, reduce administrative inefficiency, and modernize implementation of the Act. A. Improvements to the Section 7 Consultation Process Revisions to the ESA Section 7 consultation regulations are necessary to improve the efficiency and nature of the process while maintaining the core protections of the ESA. The consultation process has proven to be unwieldly--too complex for simple permits and inadequate for application to complex regulatory actions, such as pesticide registrations under the Federal Insecticide, Fungicide, and Rodenticide Act. The Services should improve the process by streamlining the existing procedures, clarifying certain regulatory definitions, and ensuring that the implementation of biological opinions is more cost effective and reliable. In addition, the Services should encourage greater collaboration with applicants so that reasonable, workable solutions can be identified and achieved, and that consultation can be concluded within the deadlines provided by statute.4 NESARC requests that FWS, in collaboration with NMFS, take the following actions: Promulgate regulations recognizing that consultation is not required for agency actions with discountable, insignificant, or beneficial effects on a species or its critical habitat. This guidance is currently contained in the Services' Consultation Handbook,5 but should be formally adopted as regulations to provide certainty and further inform the "not likely to adversely affect" determination. 3 On August 21, 2017, NESARC submitted similar comments to NMFS in Docket No. NOAA-NMFS-2017-0067. 4 See, e.g., Water Infrastructure Improvements for the Nation Act, Pub. L. No. 114-322, 4004, 130 Stat. 1628, 1858 (2016). 5 FWS and NMFS, Endangered Species Consultation Handbook, Procedures for Conducting Consultation and Conference Activities under Section 7 ofthe Endangered Species Act at 3-12 (1998). 2 National Endangered Species Act Reform Coalition Comments on Regulatory Reform November 1, 2017 Revise the definition of "environmental baseline" to focus on current environmental conditions.6 7T8he environmental baseline is intended to provide a "snapshot" of a species' health at the time of the consultation. Preapproved and preexisting activities, projects and facilities, and the associated operational effects on species and habitat, must be included in the baseline for any consultation that may be required for ongoing operations or proposed new actions carried out, authorized, or funded by federal agencies. Revise the definition of "effects of the action" to ensure that consideration of "direct effects" and "indirect effects" incorporates the principles of proximate causation and reasonable foreseeability. There must be a close causal and measurable connection between the proposed action and any effects--i.e., the action must "directly produce" the resulting effect on the species or critical habitat. A direct or indirect effect should not be included if it will occur irrespective of the proposed action. Revise the definition of "cumulative effects" to exclude "future Federal activities that are physically locao ted within the action area of the particular Federal action under consultation." This is consistent with the Service's long-held policy which states that, because future Federal actions will be separately subject to Section 7 consultation, "their effects will be considered at that time and will not be included in the cumulative effects analysis."9 Revise the definition of "biological assessment" to include other documents that contain an analysis of the potential effects of a proposed action on listed species and critical habitat.10 Such documents may include environmental assessments or environmental impact statements prepared pursuant to the National Environmental Policy Act or other similar documents that contain the information required to initiate consultation. Reconsider the definition of "destruction or adverse modification" to prevent the overexpansive and unduly burdensome application of this statutory concept.11 Contrary to the Services' current interpretation, the regulatory phrase "appreciably diminishes" must be construed to mean a "considerable reduction" in the value of critical habitat. In addition, any adverse modification must be based on impacts to actual physical or biological features, and not encompass alterations that "preclude or significantly delay development" of features that do not currently exist. Finally, the focus on "conservation 6 50 C.F.R. 402.02. 7 Id. 8 Id. 9 Interagency Cooperation, 51 Fed. Reg. 19,932, 19,933 (1986). 10 50 C.F.R. 402.02. 11 Id. For additional information, see NESARC's comments, dated October 9, 2014, submitted in Docket No. FWSR9-ES-2011-0072. 3 National Endangered Species Act Reform Coalition Comments on Regulatory Reform November 1, 2017 of a listed species" impermissibly converts the Section 7 consultation analysis into the imposition of a recovery standard. Establish deadlines for the completion of informal consultation and the timely issuance of any required concurrence by FWS or NMFS that a proposed action will not likely adversely affect a listed species or any critical habitat. ESA Section 7 provides statutory deadlines for the completion of formal consultation, and the Services should include corresponding deadlines for informal consultation to ensure that the entire consultation process proceeds in an expedient manner. Expand the use of informal consultation, programmatic consultation, and other consultation strategies to improve efficiency. For example, the Services should establish a "categorical approval" for various types of activities undertaken with certain speciesprotective best management practices. The Services should more fully utilize the expertise of action proponents and consulting agencies to inform the consultation process. For each category of proposed actions, the Services should also develop standard operating procedures for consultations that draw on relevant, reliable, and qualified data. B. Revisions to the Procedures for the Designation of Critical Habitat The process for designating critical habitat needs to be further reformed to reduce the resulting economic and regulatory burdens placed on affected entities. While the Services recently revised these regulations, additional changes are necessary to conform the regulations to Congressional intent and the explicit statutory criteria. Critical habitat designations in occupied areas can only include those areas where essential physical or biological features are currently found. For unoccupied areas, the Services must first determine that the area is habitable, and then that the designation of occupied areas, alone, is insufficient for conservation of the species. The Services cannot rely on speculative effects of climate change to designate areas that currently lack essential habitat features in an attempt to anticipate future changes in habitat or species distribution. Finally, the scale of any critical habitat designation must be limited to "specific areas" and not include broad expanses of lands and waters that extend "as far as the eyes can see and the mind can conceive."1142 N13ESARC requests that FWS, in collaboration with NMFS, take the following actions: Clarify that critical habitat can only be designated in areas, whether occupied or unoccupied, that already contain the elements necessary to provide habitat for the species. 12 Implementing Changes to the Regulationsfor Designating Critical Habitat, 81 Fed. Reg. 7,414 (February 11, 2016). 13 For additional information, see NESARC's comments, dated October 9, 2014, submitted in Docket No. FWSHQ-ES-2012-0096. 14 124 Cong. Rec. 38,131 (1978). 4 National Endangered Species Act Reform Coalition Comments on Regulatory Reform November 1, 2017 Congress included a clear habitability requirement in the ESA, and this must be reflected in the regulations.15 For both occupied and unoccupied habitat, ensure that the scope of any designation is limited to "specific areas." The Services have impermissibly expanded their discretion to designate areas "at a scale determined by the Secretary to be appropriate."16 Instead, the scale of any critical habitat designation must be consistently applied and be at a level of specificity that ensures that homes, businesses, and other areas that do not contain essential physical or biological features (for occupied areas) or essential habitat (for unoccupied areas) are not broadly swept into a critical habitat designation. Revise the definition of "geographical area occupied by the species" to only include areas with sustained or regular use by the species.17 Occupation of an area requires a level of residency or control over an area, not mere transient or temporary presence, and cannot be conflated with a species' range. Range is a broader concept that encompasses areas that are both occupied and unoccupied by the species.18 Revise the definition of "physical or biological features" to reflect that an occupied area cannot be designated based upon "habitat characteristics that support ephemeral or dynamic habitat conditions." 9 The ESA is clear that occupied areas may be designated as critical habitat only where essential physical and biological features "are found."20 The requisite features must actually exist in the specific area at the time of designation, and the Services cannot include areas merely because there is a possibility for such features to develop at some future time. Further revise the definition of "physical or biological features" to recognize that such features must have a greater biological significance than simply "supporting] the lifehistory needs of the species."21 *Congress explicitly required that the identified physical or biological features must be "essential to the conservation of the species." "Essential" is a higher standard (i.e., absolutely necessary or indispensable) that does not include any or all habitat features that support a species. 15 16 U.S.C. 1533(a)(3)(A)(i) ("The Secretary . . . shall . . . designate any habitat of such species which is then considered to be critical habitat"). 16 50 C.F.R. 424.12(b)(1), (2). 17 Id. 424.02. 18 16 U.S.C. 1533(c)(1) (requiring the Services to "specify with respect to each such [listed] species over what portion of its range it is endangered or threatened, and specify any critical habitat within such range.") (emphasis added). 19 50 C.F.R. 424.02. 20 16 U.S.C. 1532(5)(A)(i). 21 50 C.F.R. 424.02. 22 16 U.S.C. 1532(5)(A)(i). 5 National Endangered Species Act Reform Coalition Comments on Regulatory Reform November 1, 2017 Account for the existence of state, county, local and voluntary management and protection measures when determining whether physical or biological features "may require special management considerations or protection."23 Areas with existing habitat management and protective measures (included those provided by habitat conservation plans, candidate conservation agreements with assurances, safe harbor agreements, etc.) may render critical habitat redundant, and designation of those areas may provide no added benefits for the species. The Services should consult with and take input from the managers of the voluntary conservation plans before designating critical habitat. Revise the regulations to provide specific criteria for the designation of unoccupied habitat.24 2W5 ithout such standards, the Services cannot consistently determine whether an unoccupied area is essential for conservation of the species. The Services should also reinstate their previous requirement that a designation of unoccupied habitat will only occur "when a designation limited to its present range would be inadequate to ensure the conservation of the species." This regulation is consistent with Congressional intent, and maintains the proper relationship between occupied and unoccupied habitat. C. Revisions to Economic Analysis of Critical Habitat Designations The Services must also revise how the economic and other impacts of a critical habitat designation will be determined and analyzed when considering whether to exclude an area from critical habitat.26 Most importantly, the use of an incremental impacts analysis (i.e., "with and without the designation") is insufficient for fulfilling the economic impacts analysis required under ESA Section 4(b)(2).27 *By attributing almost all of the regulatory burdens and economic costs arising under the ESA to the listing decision, the Services incorrectly identify only those marginal costs that are "solely" attributed to a later designation of critical habitat. This approach ignores baseline economic conditions and fails to fully consider how a critical habitat designation will impact a particular area, such as the effect on future property values and lost conservation opportunities on private land. In addition, rather than considering impacts at a scale that the Secretary determines to be appropriate, the Services should use a scale that ensures that the economic analysis can be relied on to determine, consistent with the ESA, that a "particular area" may be excluded. Finally, the Services should use quantitative assessment methodologies, to the maximum extent practicable, and only rely on qualitative assessments of economic impacts when there is insufficient quantitative data available to conduct an economic impacts analysis consistent with the requirements of the ESA and the Data Quality Act. 23 50 C.F.R. 424.12(b)(1)(iv). 24 Id. 424.12(b)(2). 25 Id. 424.12(e) (2015). 26 For additional information, see NESARC's comments, dated October 23, 2012, submitted in Docket Nos. FWSR9-ES-2011-0073 & NOAA-120606146-2146-01. 27 50 C.F.R. 424.19(b). 28 16 U.S.C. 1533(b)(2). 6 National Endangered Species Act Reform Coalition Comments on Regulatory Reform November 1, 2017 D. Clarify the Listing Process and Increase State and Local Government Involvement Species do not receive protection under the ESA until they are listed as either endangered or threatened. 29 These decisions are frequently dictated by petitions to list species, which trigger mandatory and inflexible statutory deadlines for the Services to act. The Services have no ability to prioritize actions for imperiled species, lack the resources to act in a timely manner, and are often forced to make decisions without full and thorough consideration of scientific data. These petition deadlines are enforced through litigation and settlements, without public involvement, which further perpetuates the underlying problem.2319 30 To help alleviate these issues, the Services should identify opportunities for the greater involvement of, and collaboration with, state and local government agencies.32 State and local governments have unique authorities and expertise on the management, protection, and conservation of species and habitat within their jurisdiction. However, other than requiring petitioners to provide notice to State agencies prior to submitting petitions,33 and notices to State agencies and counties of proposed regulations,34 the expertise of these entities has been largely marginalized in the implementation of listing and critical habitat decisions. The Services should better use the expertise and abilities of State and local government agencies by providing a greater role in the listing and critical habitat designation process.35 The Services should also promulgate regulations to define the operative terms within the statutory definitions of "endangered species" and "threatened species."36 The phrases "in danger of extinction," "foreseeable future," and "significant portion of its range" ("SPR") are vague and demand codification through the rulemaking process. In addition, when a species is determined to be threatened or endangered within a SPR, the Services should limit the listing classification (and any designated critical habitat) to that identified portion of the species' range, and not apply it range-wide.37 Further clarification of these terms is necessary to provide regulatory certainty to the ESA listing process. 29 Id. 1533(a)(1). 30 Id. 1533(b)(3). 31 For revisions that could be made to improve the petition process, see NESARC's comments, dated September 18, 2015 and May 23, 2016, submitted in Docket No. FWS-HQ-ES-2015-0016. 32 16 U.S.C. 1535(a) ("In carrying out the program authorized by this chapter, the Secretary shall cooperate to the maximum extent practicable with the States."). 33 50 C.F.R. 424.14(b). 34 16 U.S.C. 1533(b)(5)(A)(ii). 35 For example, the Services should ensure that the best scientific and commercial data available is provided to state and local governments and is also publicly available on the internet. See State, Tribal, and Local Species Transparency and Recovery Act, H.R. 1274, 115th Cong. 2 (as amended and reported by H. Comm. on Nat. Res., Oct. 4, 2017). 36 Id. 1532(6), (20). 37 For additional information, see NESARC's comments, dated March 8, 2012, submitted in Docket No. FWS-R9ES-2011-0031. 7 National Endangered Species Act Reform Coalition Comments on Regulatory Reform November 1, 2017 Encourage agency staff to pursue conservation partnerships through voluntary projects with private landowners and others and increased the use of candidate conservation agreements with assurances and Section 4(d) rules for threatened species. Revoke Section 9 of the HCP Handbook adopted in December 2016.42 This section establishes agency policy on applying the "maximum extent practical" mitigation standard for HCPs. It requires detailed economic analysis of the applicant's financial books and implies that if the applicant would still make a profit from its intended lawful activities, there is not sufficient mitigation. The concept of practicality needs to be applied to both the applicant and the agency, and must account for limited agency resources and maintain incentives for the applicant to implement the HCP. II. Rescission of Mitigation and Compensatory Mitigation Policies In a 2015 Presidential Memorandum entitled "Mitigating Impacts on Natural Resources," DOI and other agencies were directed to implement a "net benefit goal" for mitigating impacts to natural resources. In response, FWS published two policies that established a net conservation gain or no net loss standard for mitigation and ESA compensatory mitigation, and adopted a preference for a landscape-scale approach to conservation.43 As NESARC explained previously, these policies impermissibly exceed FWS's statutory authority under the ESA, include vague and overly broad conservation objectives, and unnecessarily burden the regulated community.44 When applied to voluntary conservation efforts for at risk and listed species, they discourage participation and create substantial impediments to such projects. On March 26, 2017, the President issued Executive Order 13783, entitled "Promoting Energy Independence and Economic Growth," which revoked the 2015 Presidential Memorandum and generally directed the suspension, revision, or rescission of existing agency actions related to or arising from it. Following the Executive Order, Secretary Zinke issued Secretarial Order 3349 which initiated a review of all such agency actions, and established deadlines for the completion of the review and identification of subsequent measures to address the covered policies. In accordance with these directives, NESARC requests that FWS act expeditiously to rescind both the Mitigation Policy and the ESA Compensatory Mitigation Policy. 42 Joint U.S. Fish and Wildlife Service and National Marine Fisheries Service Habitat Conservation Planning Handbook, 81 Fed. Reg. 93,702 (Dec. 21, 2016). 43 Mitigation Policy, 81 Fed. Reg. 83,440 (Nov. 21, 2016); ESA Compensatory Mitigation Policy, 81 Fed. Reg. 95,316 (Dec. 27, 2016). 44 For additional information, see NESARC's comments on the Mitigation Policy, dated June 13, 2016, submitted in Docket No. FWS-HQ-ES-2015-0126; and NESARC's comments on the ESA Compensatory Mitigation Policy, dated October 17, 2016, submitted in Docket No. FWS-HQ-ES-2015-0165. 9 National Endangered Species Act Reform Coalition Comments on Regulatory Reform November 1, 2017 III. Conclusion NESARC greatly appreciates the opportunity to provide these comments to DOI. We respectfully request that you take these comments into full consideration when contemplating revisions to FWS's ESA regulations and policies. Sincerely, NESARC Counsel 10 Document Metadata:DOI-2017-0003-0215 Document Details Docket ID: DOI-2017-0003 Docket Title: Document File: Docket Phase: Regulatory Reform Executive Order 13777 * B Advance Notice of Proposed RuleMaking Phase Sequence: 1 Original Document ID: DOI-2017-0003-DRAFT-0217 Current Document ID: DOI-2017-0003-0215 Title: FWS-0072 Number of Attachments: 1 Document Type: PUBLIC SUBMISSIONS * Document Subtype: Comment on Document ID: DOI-2017-0003-0009 Comment on Document Title: Comment on This Document for U.S. Fish and Wildlife Service (FWS) Regulatory Reform Status: Posted Received Date: 11/03/2017 * Date Posted: 11/06/2017 Posting Restriction: No restrictions Submission Type: Web Number of Submissions: 1 * Document Optional Details Status Set Date: 11/06/2017 Current Assignee: NA Status Set By: Calhoun, John (DOI) Comment Start Date: 06/22/2017 Comment Due Date: Tracking Number: lkl-8zl9-2f84 Total Page Count 1 Including Attachments: Accept Comments after the Comment Due Date: Submitter Info No Comment: Please see attached comment and petition to repeal certain FWS regulations. A copy of this document was sent to the Secretary's attention today. * First Name: Conservation Middle Name: Last Name: Force ZIP/Postal Code: Email Address: Organization Name: Conservation Force Submitter's Representative: Regina Lennox Government Agency Type: Government Agency: Category: Cover Page: B CONSERVATION FORCE T Baion Bertrand des Clers, Ph.D. T James G. Teer, Ph.D. T Bait O'Gara, Ph.D. T Don Lindsay T Bert Klineburger TO: The Honorable Ryan Zinke Secretary, U.S. Department of the Interior 1859 C Street, NW Washington, DC 20240 A Force For Wildlife Conservation November 3, 2017 BOARD OF DIRECTORS: John J. Jackson, III, J.D. Chrissie Jackson Philippe Chardonnet, D.V.M. Shane Mahoney Renee Snider RE: COMMENT & PETITION TO REPEAL 50 C.F.R. 17.31 & 17.40(e), (f), (j), (n), (r) Submitted through www.regulations.gov, Docket No. DOI-2017-0003-0009 This Comment and Petition for Rulemaking is filed pursuant to the Department of Interior's regulatory reform initiative undertaken in response to Executive Order 13777,1 the Endangered Species Act (ESA),2 the Administrative Procedures Act,3 and U.S. Fish and Wildlife Service's (FWS) implementing regulations.4 Conservation Force submits this Comment and Petition for Rulemaking to repeal these unnecessary, ineffective, and obstructive regulations including: 17 C.F.R. 17.31 (Prohibitions); 17 C.F.R. 17.40(e) (Special rules--African elephant); 17 C.F.R. 17.40(f) (Special rules--Leopard); 17 C.F.R. 17.40(j) (Special rules--Argali); 17 C.F.R. 17.40(n) (Special rules--Straight-horned markhor); and 17 C.F.R. 17.40(r) (Special rules--Lion). These self-imposed regulations burden the import of threatened-listed species as if they were endangered, and obstruct foreign nation conservation programs, with little regard for foreign cooperation or diplomacy. Conservation Force offers specific expertise in the burden imposed by these regulations because we deal with the delay and negative impact they inflict on a regular basis. Conservation Force is a not-profit, 501(c)(3) charitable organization whose mission includes the conservation of wildlife and wild places. In this Comment and Petition, we draw on decades of experience in submitting, supporting with substantive information, and tracking permit applications, on behalf of U.S. citizens who wish to import sport-hunted trophies of endangered- and threatened-listed species. We pioneered the enhancement permitting for endangered-listed Suleiman markhor, Canadian wood bison, and Namibian black rhino, and we maintain active permit campaigns for threatened-listed species like lion, elephant, and argali. We assist individuals, range nations, and stakeholders in importing hunting trophies because the revenues and incentives from regulated hunting form the foundation of crucial range nation conservation systems. We provide these services pro bono because of our commitment to support effective foreign nation conservation programs. We know, first-hand, the delays, low prioritizations, and negative impacts caused by these regulations and their burden on range nations from those that bear the cost of compliance. This Comment and Petition 1 https://www.doi.gov/regulatorv-reform/implement: Enforcing the Regulatory Reform Agenda, Executive Order No. 13777, 82 Fed. Reg. 12285 (March 1, 2017). 2 16 U.S.C. 1531 et seq. (2017). 3 5 U.S.C. 553 (2017). 4 48 C.F.R. 14.2 (2017). 3240 S I-10 Service Road W, Suite 200, Metairie, Louisiana 70001, USA Telephone: (504) 837-1233 Fax (504) 837-1145 Email: cf@conservationforce.org www.conservationforce.org comment & petition to repeal 50 C.F.R. 17.31 AND 17.40(e). (f). (i). (n). & (r) seeks to lift that burden for threatened-listed (non-endangered) foreign species, most particularly but not exclusively, for those already protected by a listing on Appendix II of CITES.5 We offer our special expertise in "alleviating unnecessary burdens" on U.S. citizens from current FWS permitting requirements,6 and our recommendations will give force to Congress' intent in the ESA to avoid unnecessary regulation of threatened-listed species and to favor range nation efforts that are effectively conserving foreign species.7 These regulations should be repealed because they meet three of the regulatory reform initiative's criteria: (1) are unnecessary and ineffective, (2) impose costs that exceed benefits, and (3) create a serious inconsistency with regulatory reform initiatives and policies. 1. These regulations are unnecessary and ineffective. The regulations impose the same requirements on threatened species that apply to endangered-listed species, even though the level of risk facing each is different.8 Treating these categories the same makes no sense. Because Congress created two categories, the FWS should treat endangered species differently from threatened species.9 Endangered species are "in danger of extinction." In contrast, threatened species do not yet face this imminent risk of extinction.10 Endangered species automatically receive special protections under the ESA. However, for threatened species, the Secretary of Interior (or his designee) is directed, in his discretion, to "issue such regulations as he deems necessary and advisable to provide for the conservation of such species."11 The wording of this directive indicates that the FWS should make an individualized determination for threatened species to ascertain what regulation, if any, is truly necessary to provide for the species' conservation. In taking the easy way out, the FWS has imposed an unnecessary and ineffective regulation, without discretion, as if the same. Further, treating endangered- and threatened-listed foreign species the same is detrimental to those foreign species because the ESA does not provide the same protections for foreign species that it does for domestic species.12 The FWS has no jurisdiction to designate critical habitat in a foreign country, prohibit 5 The Convention of International Trade in Endangered Species of Wild Fauna and Flora, http://www.cites.org. 6 In addition to these services, Conservation Force funds on the ground conservation programs, such as management planning and anti-poaching in Zimbabwe, lion aging in Tanzania, monitoring and aging of leopard in Zambia, wetland surveys in Namibia, markhor research in Pakistan, and much more. 7 Repealing these regulations will also advance Congress' express intent in the African Elephant Conservation Act, 16 U.S.C. 4201 et seq. (2017). 8 For example, under Section 17.31, Prohibitions, "... all of the provisions in 17.21 shall apply to threatened wildlife, except 17.21(c)(5)." Section 17.21 applies specifically to endangered-listed species. 9 E.g., Ratzlaf v. United States, 510 U.S. 135, 140-41 (1994); Bailey v. United States, 516 U.S. 137, 146 (1995), super seded by statute on other grounds. 10 16 U.S.C. 1532(6) ("The term 'endangered species' means any species which is in danger of extinction throughout all or a significant portion of its range.") & (20) ("The term 'threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."). 11 E.g., 16 U.S.C. 1533(d), 1538(a)(1). 12 Draft Policy for Enhancement-of-Survival Permits for Foreign Species Listed Under the Endangered Species Act, 68 Fed. Reg. 49512, 49513 (Aug. 18, 2003): 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. How ever, 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 2 comment & petition to repeal 50 C.F.R. 17.31 AND 17.40(e). (f). (i). (n). & (r) take of a species whose range is completely outside the U.S., require recovery or cooperative programs, or provide funding for foreign programs.613* I*m* p* o* s* ing the same prohibitions on foreign, threatened-listed species as endangered species obstructs and overburdens range nation conservation efforts, particularly regulated sport-hunting programs. Even in countries where threatened species are doing the best, the FWS must make arbitrary "enhancement" findings. These fact-intensive, standard-less, findings require range nations to submit extensive information to the FWS. The FWS does not just ask about the sustainability of sport hunting. Rather, it asks for minute detail on issues that have nothing to do with enhancement.14 For example, although Zimbabwe maintains the second-largest elephant population in the world and depends on the revenues from regulated hunting to fund both the wildlife authority, and rural communities (CAMPFIRE), the FWS suspended U.S. imports of sport-hunted trophies in April 2014. That suspension is still in place. Zimbabwe has sent information to the FWS at least five times. Zimbabwe has shown that its elephant population is stable, hunting offtakes are carefully monitored, and revenues from elephant hunting fund law enforcement and rural community development and increase tolerance of the large elephant population. Application of Section 17.40(e) has reduced Zimbabwe's funding for anti-poaching and cost Zimbabwe's rural poor over $1.5 million in annual elephant hunting fees. In demanding "enhancement," but without defining any specific standard, these regulations are burdening countries and depriving them of the benefits of the conservation hunting. And this finding is wholly unnecessary and ineffective in a country whose management speaks for itself. This is additive costs and delays to a successful program for a CITES Appendix II species.15 These regulations unreasonably impose a tax-like cost on countries with stable or increasing elephant, leopard, lion, argali, and other threatened-listed wildlife. And worse, the nations which could benefit from regulated sport hunting the most are completely shut out by the FWS' negative administration of the enhancement standard. The result of these regulations is capricious: Range nations which would benefit from sport-hunting revenues and the presence of hunting operators the most are the least likely to have imports approved. Perhaps these regulations were intended to motivate range nations to adopt better practices. If so, that intention is not communicated competently. Worse, even when a range nation adopts a better 6 grant-in-aid program do not apply to ESA-listed foreign species. Even the fundamental conservation tool of prohibition of take ... is limited to actions taken within the United States, the territorial seas of the United States, or on the high seas ... 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). 13 In fact, Congress has had to enact special legislation to provide funding for foreign species. E.g., African Elephant Conservation Act, 16 U.S.C. 4201-4245; Rhinoceros and Tiger Conservation Act, 16 U.S.C. 5301-5306. 14 For instance, the FWS asked Zimbabwe about rumored changes in land tenure in one private conservancy with an elephant population of approximately 1,500--private land not subject to the wildlife authority's control, and a small part of the overall elephant population of 83,000+. 15 It has been repeatedly recognized--even when the elephant was listed on Appendix I of CITES--that the elephant populations in the Southern Africa Development Community countries were not at risk of extinction and maintained stable or increasing elephant populations. The elephant was listed on Appendix I of CITES (and then downlisted to Appendix II in Botswana, Namibia, South Africa, and Zimbabwe) over the objections of the SADC range nations, which offered evidence of their healthy populations and responsible management. See CoP7, Proposal (1989); CoP7, Doc. 7.43.4, Elephants and Ivory Trade in Southern Africa, available at https://www.cites.org/eng/cop/07/doc/index.php. 3 comment & petition to repeal 50 C.F.R. 17.31 AND 17.40(e). (f). (i). (n). & (r) practice-such as when Zimbabwe updated its elephant management plan at the FWS' behest--the FWS does not issue import permits. Inaction is poor motivation indeed. Finally, the regulations are ineffective and unnecessary because the enhancement standard is already satisfied. Enhancement means "benefits" for the species. Range nations incorporate sport hunting into their conservation programs because it creates benefits.16 Every dollar raised for law enforcement, every snare picked up by a hunting operator, every villager employed as camp staff, and every kilogram of meat contributed to a remote village benefits the species by improving protection and tolerance. The FWS does not need a redundant regulation to incentivize enhancement. It already exists. 2. The cost of implementing and administering these regulations exceeds the benefits. The regulations have no demonstrated benefit to the species, most especially to foreign game species. On the other hand, the FWS has repeatedly demonstrated an inability to effectively issue, and responsibly administer, these regulations, to the detriment of the species and range nation conservation efforts. For example, the FWS proposed a threatened listing for the African lion in October 2014 with a special rule to extend the same prohibitions as for endangered species to the lion.17 Range nations publicly opposed the proposed listing and special rule.18 Among other comments, seven African nations expressed "serious concerns about the regulatory changes proposed in the 4(d) rule" because it would "only have a negative impact on hunting in the range states. Additional regulations and permitting requirements will certainly discourage or inhibit U.S. hunters, the highest-paying clients participating in consumptive ecotourism ... range states will experience a loss of revenue generated from U.S. hunters, which supports the capacity of governments and community districts to protect, study and manage lion populations."19 The final rule listing the lion as threatened and imposing the special rule was adopted over a year later and went into effect on January 22, 2016.20 Conservation Force immediately filed applications for permits to import sport-hunted lion trophies. These applications languished "on hold" at the FWS until October 19, 2017 (apparently due to wholly unrelated priorities related to commercial wood import permits).21 During this almost two-year delay, the uncertainty greatly damaged the very best range nation efforts to conserve lion and reduce human-lion-livestock conflicts.16 17 18 19 20 21 16 Range nations require the hunting benefit species through mandatory anti-poaching and community investment programs (imposed by regulation or lease agreement), and monitor the benefits through mandatory reporting. E.g., Tanzania's Wildlife Conservation (Tourist Hunting) Regulations (2015). 17 77 Fed. Reg. 70727 (Nov. 27, 2012); 79 Fed. Reg. 64472 (Oct. 29, 2014). 18 Burkina Faso, Tanzania, Zambia, Zimbabwe, and other range nations submitted comments opposing the proposed listing and proposed regulation. See Docket No. FWS-R9-ES-2012-0025. 19 The seven countries "strongly suggested] that the Service withdraw its proposed 4(d) Rule and ensure that trade in hunted lions is not hindered. If the Service is looking to improve management of lions in range states, the Service should improve bilateral cooperation with the range state governments ... instead of imposing additional restrictions and administrative burdens that adversely affect them." See Docket No. FWS-R9-ES-2012-0025. 20 80 Fed. Reg. 80000 (Dec. 23, 2015). 21 Applications for permits to import sport-hunted elephant trophies from Tanzania, Zambia, and Zimbabwe have also been "on hold" for a year or more. The FWS has admittedly prioritized permits to import CITES-listed rosewood above sport-hunted trophies, to the detriment of threatened-listed game. 4 comment & petition to repeal 50 C.F.R. 17.31 AND 17.40(e). (f). (i). (n). & (r) As the range nations pointed out in opposing the lion's listing and the special rule (and other proposed listings),22 regulated sport hunting generates benefits for listed species in the nations with the largest or second largest populations of African elephant, leopard, lion, black and white rhino, markhor, argali, etc. in the world. Regulated sport hunting secures far more habitat than in national parks, funds most wildlife authority operating costs and anti-poaching, and incentivizes better tolerance among rural communities and private landholders through revenues, game meat distributions, employment, infrastructure projects, and more. A few examples follow. Habitat: Available habitat for threatened-listed species like elephant, lion, and leopard is greatly expanded by safari areas, communal lands gazetted for sustainable use, and private ranches and conservancies. In every Southern or East African country that relies on the conservation value of sport hunting, hunting areas are 1.5 times (e.g., in Mozambique) to over five times (e.g., in South Africa and Tanzania) the size of national parks. Habitat loss is the greatest threat to wildlife, and is mitigated by sport hunting. However, the burden and delay inflicted by these regulations reduce the benefits from regulated sport hunting, most especially to habitat.23 For example, since 2014, 22 See, for example, comments from Burkina Faso, South Africa, Tanzania, Zambia, and Zimbabwe in Docket No. FWSR9-ES-2012-0025 (lion); comments from Mozambique, Tanzania, Zimbabwe in Docket No. FWS-HQ-ES-2016-0131 (leopard). 23 For example, Burkina Faso explained to the FWS: Burkina Faso does not agree that its lion should be listed as threatened and disagrees that imports into the USA should be conditioned on proof of enhancement and nationwide population status. The lion habitat in the "W Complex" is secure and the protective system also secures the prey base for lion. The safari hunting of that population is part of the system that secures the lion. The proposed import permit regulations could threaten the lion ... An embargo on lion trophies in Burkina Faso would have the direct result of devaluing the lion in this country, by removing from it the only positive value it currently has in the eyes of local actors in ~2/3 of its habitat areas, namely the Hunting Zones. Worse still, ... the only value that the lion would have left for these local actors would be its negative value as livestock predator and as a threat to people. One must fear the worst for the future of the lion as it would have lost its only advocates across the largest part of its range. An embargo would drastically reduce the lion's range. For ... the hunting areas would no longer be suitable lion habitat. Nothing ... and no-one ... will ... hold back the livestock farmers from eliminating their old enemy. Moreover, with no lion hunting, the safari companies will only consider the lion as a predator of hunted species ... which will continue to be valued by the hunt but will continue to be victims of the lion. Even the lions from the Arly and W National Parks would be endangered due to the lack of protection in the adjoining Hunting Zones, which will no longer serve as buffer zones for the national parks and ecological corridors ... In West Africa, the largest current population of lions - elsewhere considered by many as the only long-term viable population in the sub-region - is in Burkina Faso, which is the only country in the entire sub-region to have maintained controlled lion hunting. It is not a coincidence. Imposing an embargo on lion trophies would jeopardize this situation . Burkina Faso, p. 28; see also Republic of South Africa, p. 7 ("The revenue generated through hunting contributes to the maintenance of areas where the lion populations can continue to exist. The economic benefit to the private sector of keeping and trading in wild lion may provide a strong incentive for conserving the species and habitat."); Republic of Zambia, p. 20-21; Republic of Zimbabwe, p. 1 ("The proposed listing of the African Lion as threatened ... will seriously jeopardize Zimbabwe's lion conservation efforts. The rule and listing will have huge negative social economic impact on local communities and the local hunting industry. The loss of legal income from lion hunting is likely to fuel poaching which will negatively affect lion conservation in Zimbabwe"); United Republic of Tanzania, p. 27 ("If the 4(d) rule of the ESA is adopted, import of lion trophy into the United States of America would require prior grant of threatened species import permits. This might discourage USA client to book lion hunting safari 5 comment & petition to repeal 50 C.F.R. 17.31 AND 17.40(e). (f). (i). (n). & (r) over 70,000 km2 in concessions have been returned to Tanzania's wildlife authorities.24 Operators simply do not have the capacity to maintain this habitat and to combat encroachment due to the suspension of elephant trophy imports and the defacto suspension of lion trophy imports and the related 14- or 21-day safaris. The damage from the regulations is real, measurable, and avoidable. (It should be noted that the FWS did not send an "enhancement" questionnaire to Tanzania for more than three months after the requirement went into effect, and the FWS sent questionnaires to other range nations.) Operating Revenue and Anti-Poaching: Range nation operating budgets and anti-poaching efforts are largely funded by hunting fees. As Tanzania demonstrated to the FWS, hunting fees comprised over 83% of wildlife authority over five years, paid for anti-poaching, and also "provid[ed] direct contributions from safari operators to anti-poaching patrols and scouts ... all of which benefits the government by shifting these costs to the private sector."25 In Tanzania, a sample of 27 operators invested over 6.7 million in anti-poaching, on top of the fees paid to the government, in the 2013 2015 period.26 (These figures predate application of the "special rule" for lion, and have declined significantly because of the special rule.) Community Incentives: Range nations implemented community wildlife management programs to incentivize those who live side-by-side with wildlife to treat dangerous game as an asset--and not as a nuisance or threat. This is a sea change, since dangerous game like elephant, leopard, and lion destroy crops, livestock, and human lives. For example, Namibia's communal conservancies cover 163,000 km2, employ hundreds, and generate tens of millions of dollars each year.27 Under this system, elephant, leopard, lion, rhino, and other species are increasing. Similarly, Zimbabwe's CAMPFIRE program is effectively reducing human-wildlife conflict: from 2011-2015, leopard hunts in CAMPFIRE Areas generated ~$500,000 for rural communities, and there were no reported PAC (problem animal) offtakes in these areas.28 packages in Tanzania. The trophy hunting industry['s] sustainability would be threatened by the loss of its main attracting product (the lion) combined to the loss of its main market (the USA). A lot of hunting companies ... will return[] most (if not all) of their hunting areas to the Wildlife Division to avoid bankrupt ... many protected areas devoted to tourist hunting will be converted to agropastoral land, leading to the unavoidable extinction of wildlife and natural habitats with collapse of ecosystem services (e.g. Lindsey et al., 2012)"), all available at Docket No. FWS-R9-ES-2012-0025. 24 United Republic of Tanzania, p. 11-12, available at Docket No. FWS-HQ-ES-2016-0131). 25 Compare United Republic of Tanzania (2015), p. 7-8, available at Docket No. FWS-RS-ES-2012-0025, with United Republic of Tanzania (2017), p. 10-11, available at FWS-HW-ES-2016-0131. 26 Conservation Force, Tanzania Lion Enhancement Summary Report (2016) (this investment resulted in 7,170 patrol days, 1,409 poachers arrested, 6,233 snares and gin traps removed, 171 firearms and 1,557 rounds of ammunition collected, 704 vehicles confiscated, and 1,118 other weapons confiscated (~11 companies reporting)). 27 Namibian Assn. of CBNRM Support Organizations, The State of Community Conservation in Namibia: A Review of Communal Conservancies, Community Forests, and Other CBNRM Initiatives (2015); R. Naidoo et al., Complementary Benefits of Tourism and Hunting to Communal Conservancies in Namibia, 30 Conservation Biology (Jan. 8, 2016). 28 Republic of Zimbabwe (2016), p. 28, available at FWS-HQ-ES-2016-0131. 6 comment & petition to repeal 50 C.F.R. 17.31 AND 17.40(e). (f). (i). (n). & (r) As range nations and others have pointed out, listing foreign game species as threatened with a "special rule" imposing the same prohibitions as for endangered species obstruct these benefits, with no offsetting gain for the species.29 3. Maintaining these regulations would conflict with regulatory reform initiatives and policies and the express intention of Congress. These regulations violate Congress' intent and create a serious inconsistency with stated regulatory reform initiatives and policies by imposing regulatory requirements where Congress explicitly emphasized the importance of range nation conservation efforts and exempted imports from regulation. When the ESA was enacted in 1973, Congressional intent was clear: listing should not occur if range nation conservation efforts, including sport hunting programs, were in place to protect and recover the species.30 In requiring that the range nation conservation efforts be "taken into account" in listing determinations,"31 Congress evidenced its intention to allow range nations--"the best protectors of their own wild fauna and flora"--to provide the first line of defense for their species and manage their species in a way that works.32 In amending the ESA, Congress explicitly directed the FWS to "facilitate" imports of sport-hunted trophies, not to obstruct them.33 Yet, the adoption of overreaching regulations fails to take into account successful range nation conservation efforts for threatened-listed species and fails to "facilitate" imports. For every import that is allowed, others are denied, to the detriment of range nation programs. That special rules have been adopted unilaterally against the expressed views of range nations underscores the detrimental impact of these regulations. 29 E.g., Zimbabwe has spoken out against U.S. import restrictions on repeated occasions. E.g., Zim attacks proposed ban on trophy hunting, http://source.co.zw/2016/07/zim-attacks-proposed-ban-on-trophv-hunting-savs-millionsin-potential-revenue-under-threat/; Zim rejects proposed CITES regulations, http://www.herald.co.zw/zim-rejectsproposed-cites-regulations/; 26 more elephants killed with cyanide in Zimbabwe, http://www.cbsnews.com/news/ 26-more-elephants-killed-with-cyanide-in-zimbabwe/ ("'All this poaching is because of American policies, they are banning sport hunting. An elephant would cost $120,000 in sport hunting but a tourist pays only $10 to view the same elephant,' she said, adding money from sport hunting is crucial in conservation efforts."). 30 H. R. Rep. No. 93-412 (1973), p. 11 ("The section requires the Secretary to give full consideration to efforts being currently made by any foreign country to protect fish or wildlife species within that country, in making a determination as to whether or not those species are endangered or threatened. There is provided ample authority and direction to the Secretary to consider the efforts of such countries in encouraging the maintenance of stocks of animals for purposes such as trophy hunting."). 31 16 U.S.C. 1533(b)(1)(A) ("The Secretary shall make determinations ... solely on the basis of the best scientific and commercial data available to him ... after taking into account those efforts, if any, being made by any ... foreign nation, or any political subdivision of a ... foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas.") 32 CITES, preamble, https://www.cites.org/eng/disc/text.php#texttop. 33 97 S. Rep. No. 97-418 (1982), p. 16: There may be nations where a combination of a healthy population and effective management programs permit sport hunting of such species without adversely affecting its status. The failure to recognize this may result in the foreign nations being denied much-needed revenues derived from license fees that are used to fund their wildlife conservation and management programs ... If the Secretary determines that sport hunting in such a country will assist in the conservation of a listed species, he should issue appropriate regulations to facilitate the import of sport-hunted trophies of such specimens. The above-mentioned criteria should be taken into account in future listings of game species as well. 7 comment & petition to repeal 50 C.F.R. 17.31 AND 17.40(e). (f). (i). (n). & (r) Most importantly, these regulations increase the burden on threatened-listed species that are almost all listed on Appendix II of CITES. Congress already provided how to handle imports of those species. Section 9(c)(2) of the ESA creates the presumption of legality for non-commercial imports of species that are not endangered listed, but are listed on CITES Appendix II.34 Congress believed that CITES provided more than sufficient protection for threatened-listed species. Yet the FWS has repeatedly, and without explanation, changed the balance. It has become the FWS' practice to ignore Section 9(c)(2)'s exemption of non commercial trade of foreign threatened-listed species on Appendix II of CITES. Instead, adoption of special regulations has become the normal and expected practice, despite the negative effects and mal administration Congress intended to prevent. It is past time to roll the practice back. For example, before October 2016, the threatened-listed Canadian wood bison (Bison bison athabascae) could be imported into the U.S. without a permit pursuant to Section 9(c)(2). However, at the seventeenth Conference of the Parties to CITES, the wood bison was removed from Appendix II, and is no longer listed on any Appendix.35 Under the regulations proposed for repeal, a permit is now required to import a non commercial, sport-hunted bison trophy for personal use. Nothing has changed with respect to the bison's status--except that imports are more difficult because of an unnecessary regulation that treats threatened species as if they were listed and at the same risk as endangered species. This is but one example in how the failure to abide by Congress' intent and the ESA's terms conflicts with regulatory reform. In conclusion, individual hunters and range nations are facing years-long approval processes for the import of the trophies of threatened-listed species. Proof of enhancement is often clear, but arbitrary application of the concept extends the delay. Range nations without armies of administrative personnel cannot satisfy the paperwork. In the nations with more limited resources, application of these regulations is the death toll of recovery efforts. These regulations harm range nation conservation programs where sport hunting is needed the most. In treating threatened species like endangered species, these regulations increase the chance that the species will become endangered, because management revenue, tolerance incentives, and protection capacity are all reduced. There can be no pretense that range nation programs are being encouraged, when they are discouraged. There can be no pretense that range nation conservation efforts are being "taken into account" when the range nations opposed the adoption of these regulations, yet the FWS adopted them anyway and with no discussion of the range nations' objections. No one is fooled, and the FWS has openly admitted that listing a foreign species may impede its recovery.36 Repealing the challenged regulations will pave the way for more efficient imports, which will, in turn, encourage foreign nation conservation efforts, instead of making them less achievable. It will advance the Congressional intent in Sections 4(b)(1), 8(b), and 9(c)(2) of the ESA. It will reinforce incentives to protect 34 16 U.S.C. 1538(c)(2) ("Any importation into the United States of fish or wildlife shall, if--(A) such fish or wildlife is not an endangered species ... but is listed in Appendix II to the Convention, (B) the taking and exportation of such fish or wildlife is not contrary to the provisions of the Convention ... (C) the applicable requirements of subsections (d), (e), and (f) of this section have been satisfied, and (D) such importation is not made in the course of a commercial activity, be presumed to be an importation not in violation of any provision of this chapter or any regulation issued pursuant to this chapter."). 35 Consideration of Proposals for Amendment of Appendices I and II, Proposal to Delete Bison bison athabascae from Appendix II, CoP 17 Prop. 1 (2016); CITES CoP 17, Committee I, Summary Record of the Sixth Session of Committee I, CoP17 Com. I Rec. 6 (Rev. 1) (Sept. 28, 2016 09h30--12h00). 36 See 68 Fed. Reg. at 49513. 8 comment & petition to repeal 50 C.F.R. 17.31 AND 17.40(e). (f). (i). (n). & (r) and recover foreign species. Repealing these regulations will benefit wildlife, people, and the overarching goal of regulatory reform. Thank you for your consideration of this Comment and Petition. Sincerely, John J. Jackson, III, President Conservation Force 9