The official Statement from The Elephant Protection Association
Executive Summary

The Fish and Wildlife Service (FWS or the “Agency”) proposed the subject rule change citing a sharp rise in poaching of African elephants due to an illegal ivory trade that allegedly threatens the species with extinction. Although FWS is well aware that practically all of the illegal ivory taken from Africa is flowing to China and other East Asian countries, the Agency has focused this regulation on creating a near total ban on the domestic ivory trade in the United States. This Proposed Rule Change should be withdrawn because

The disconnect between the problem and the proposed solution is so great that it renders the Proposed Rule Change arbitrary and capricious under the Administrative Procedure Act

FWS misconstrued key data in its Proposed Rule Change about the prevalence of illegally imported ivory in the U.S. market and the extent to which it could contribute to African elephant poaching, thereby violating the Federal Data Quality Act

FWS is taking this action without any meaningful study of or regard for the enormous burdens and financial losses for Americans who own or trade items made with legally imported ivory, especially small businesses, while at the same time the agency acknowledges it is unable to state whether this Proposed Rule Change will save any African elephants, thereby violating the Regulatory Flexibility Act and Executive Orders 12866 & 13563

The exceptions in the Proposed Rule Change are of no practical use and are therefore illusory due to the extraordinary documentation requirements and burden of proof placed on individuals who own or trade items made with legally imported ivory

FWS, through this Proposed Rule Change, is inappropriately bootstrapping Director’s Order 210 and its revocation of the Endangered Species Act’s antique exemption to prohibit import of antique ivory in violation of the Administrative Procedure Act because the Agency failed to provide adequate notice and comment or otherwise follow prescribed procedures to promulgate required regulations to implement the African Elephant Conservation Act

The Proposed Rule Change would result in unconstitutional taking of legally imported ivory under the 5th Amendment and would not fall within the Andrus v. Allard legal doctrine concerning takings due to the lack of any nexus between the purported rationale of the regulation (stopping African elephant poaching) and its proposed action (implementing a domestic ivory ban in the United States)

The agency failed to consider less burdensome tools for achieving regulatory ends in accordance with SBREFA and Executive Orders 12866 & 13563
for the entire statement and supporting documents go here-http://elephantprotection.org/Comment
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