Enhancement-of-Survival Permits: Background and Status of Proposed Policy
CRS Report for Congress
Enhancement-of-Survival Permits:
Background and Status of Proposed Policy
Pervaze A. Sheikh
Analyst in Environmental and Natural Resources Policy
Resources, Science, and Industry Division
Summary
On August 18, 2003, the Fish and Wildlife Service released a proposed policy that
provides guidance on the issuance of enhancement-of-survival permits authorized by the
Endangered Species Act.1 The aim of this policy is to broaden consideration of issuing
permits for the harvesting and import of foreign endangered species, as an incentive to
encourage conservation of the endangered species in the wild. This policy has generated
controversy. Some contend that the take of endangered species in foreign countries
cannot be controlled and may lead to the reduction of many endangered species.
Further, some contend that the proposed policy is vague in describing how funds
generated from the harvesting of endangered species will be transferred to conservation
programs. The Fish and Wildlife Service and some supporters of the policy contend that
limited harvesting of endangered species will create an overall benefit to the species by
funding conservation programs to help the species. Currently, the proposed policy is
still being considered and no final policy has been issued. This report will be updated
as events warrant.
This report summarizes and analyzes a proposed policy for enhancement-of-survival
permits for foreign species listed under the Endangered Species Act (ESA; P.L. 93-205;
16 U.S.C. §§1531-1544). The proposed policy is still being considered and no final
policy has been issued. This differs from a proposed regulation to revise permit
applications for taking endangered species from domestic and foreign areas.2 Some have
erroneously referred to these policies as one policy.
1 U.S. Department of the Interior, Fish and Wildlife Service, “Draft Policy for Enhancement-of-
Survival Permits for Foreign Species Listed Under the Endangered Species Act,” Federal
Register, vol. 68, no. 159 (Aug. 18, 2003), p. 49512. (Hereafter cited as Proposed Policy.)
2 U.S. Department of the Interior, Fish and Wildlife Service, “Revisions to the Regulations
Applicable to Permits Issued Under the Endangered Species Act,” Federal Register, vol. 68, no.
Congressional Research Service ˜ The Library of Congress
Background
Nearly 40% of all species listed under the Endangered Species Act (ESA) have
natural habitat ranges outside the United States. Although foreign and domestic species
are treated equally in the listing process under the ESA (i.e., use the same biological
criteria for listing), most of the conservation provisions listed under the ESA are not
applied to foreign species. Some examples include habitat and recovery planning, state
grant programs, and those prohibition-of-take3 provisions that are limited to actions taken
within the United States, territorial seas of the United States, or high seas (i.e., actions
committed by persons under the jurisdiction of the United States). The ESA specifically
addresses foreign species under §§8 and 8A of P.L. 93-205, as amended. These sections
authorize the United States to provide financial assistance, support foreign conservation
programs (including participation in multilateral or bilateral agreements), and send
technical assistance to help other countries with species listed under the ESA.4
The ESA also implements the Convention on the International Trade of Endangered
and Threatened Species of Wild Flora and Fauna (CITES). CITES parallels the ESA by
dividing its listed species into groups according to the estimated risk of extinction, but
uses three major categories, rather than two.5 In contrast to the ESA, CITES focuses
exclusively on trade, and does not consider or attempt to control habitat loss.
Proposed Policy
According to the Fish and Wildlife Service (FWS), the incentives the United States
can use to encourage conservation of foreign species are limited under existing laws and6
treaties. One venue for conserving species, according to the FWS proposed policy, is
through permits that would allow imports of foreign listed species, or their parts or7
products. These permits would allow imports of endangered species into the United
States for scientific research and for the enhancement of survival of the species in their8
range country (i.e., country where the population of the species in question exists).
Enhancement of survival implies that the import of endangered animals or their parts or
products will provide incentives for increasing the survival of the species in its native
3 The term take under ESA is defined at 16 U.S.C. §1532 as “to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” (Harassment
and harm are further defined in regulation at 50 C.F.R. §17.3.) Taking is prohibited under 16
U.S.C. §1538.
4 For more information on the ESA, see CRS Report RL31654, The Endangered Species Act: A
Primer, by Pamela Baldwin, Eugene H. Buck, and M. Lynne Corn.
5 Under CITES, species are listed in one of three appendices. Species in Appendix 1 are
considered “threatened with extinction” and are banned from international trade with few
exceptions; species in Appendix II are not necessarily threatened with extinction, but trade must
be controlled to avoid exploitation that would threaten their survival; and species in Appendix
III are protected in at least one country, which has asked others for assistance in controlling trade.
6 Proposed Policy.
7 Ibid.
8 See P.L. 93-205, §10(A)1(a).
habitat. For example, if trophy hunters are allowed to harvest a limited number of
animals, and if funds generated by their activities (e.g., through permits or taxes) are
transferred to a conservation program that supports a population of the same species, then
some contend, the limited take of individuals through hunting could enhance the species
by providing an incentive for conservation. According to the FWS, the authority to issue
these types of permits already exists. However, in the past, the guidelines allowing these
permits to be issued have been interpreted narrowly, which has resulted in few permits
being issued.9 The proposed policy is expected to provide a “new” way of looking at the
basis of findings under existing regulations that allow for enhancement-of-survival
permits.10 (The specific guidelines to apply for an enhancement-of-survival permit are
found at 50 CFR §§17.22 and 17.32.)
The proposed policy is expected to provide guidance for considering the issuance of
enhancement-of-survival permits under §10(A)1(a) of the ESA. The permits would allow
imports of foreign-listed species or their parts or products under limited circumstances
when a “substantive conservation program for the species [exists] and the import or
export [of the species] meets all relevant requirements and resolutions of CITES.”11
Protected species are organized under CITES into three appendices. Species in Appendix
I are threatened with extinction and trade in these species is prohibited for commercial
purposes. Appendix II contains species not necessarily threatened with extinction, but
which require controlled trade to prevent population declines. For species protected in
Appendix III, at least one country has requested other countries to assist in regulating
trade originating in that country. Under the proposed policy, if a species is listed under
Appendix I of CITES, it must meet the CITES requirements for trade to be considered for
a permit under this proposed policy. The conservation program must be established and
shown to offset the limited take of individual animals through the conservation of the
species in the range country. The application process would follow guidelines listed in
the current federal regulations and a notice of each application would be published in the
Federal Register. The applicant must provide information that would allow the FWS to
conclude that the species in question would obtain a net benefit from its conservation
program if imports of the species or its parts or products are allowed into the United
States. Further, “a substantial contribution to the conservation of the species in the wild,
through direct or indirect means” must result.12 It is unclear what the parameters and form
of this contribution must be. Decisions on permits would be made on a case-by-case basis
for each species.
Several species that could serve as examples of the potential application of the
proposed policy are listed in the policy. These species include Morelet’s Crocodile,
Straight-horned Markhor, Asian Bonytongue, Wood Bison, and Asian Elephant.
Reaction to the Proposed Policy. Some supporters of the proposed policy
believe that the policy is one of the few ways the United States can provide incentives for
9 Proposed Policy.
10 Personal communication with Kenneth Stansall, Assistant Director of International Affairs,
U.S. Fish and Wildlife Service, U.S. Dept. of the Interior, Washington, DC, Jan. 26, 2004.
11 Proposed Policy.
12 Ibid.
conservation in developing countries. Others appreciate the concept of the policy, but
would like to have “solid evidence” that trade would actually benefit animals in the
wild.13 Some environmental groups have responded to this proposed policy with
skepticism on its possible effects on endangered species, and contend that the policy is
too vague and may spur an increase in smuggling.14 Further, some groups contend that
the policy places too much responsibility on the range country for operating and
maintaining conservation programs. The Department of the Interior contends that permits
will only be given if a substantive conservation program is in place and is enhancing the
survival of the species. The DOI further states that the precedents for these permits
already exist for some of the species that are listed as threatened under the ESA and some
species that are listed under CITES.15
13 Alan Miller, “U.S. Seeks Looser Rules on Wild Animal Imports,” The Los Angeles Times (Oct.
14 Ibid.
15 Ibid.