US Endangered Species Act: Southern White Rhino Listing
November 2013, Volume 11-5&6

On September 11, 2013, the US Fish & Wildlife Service (USFWS) issued an “Interim Rule” listing of all southern white rhino (Ceratotherium simum simum) as threatened under the Endangered Species Act, ESA. 78 FR 55649. The listing was made effective immediately and without prior notice, or a call for comments. Comments are being accepted before the Interim Rule is made final, but the listing has the force of law now.

The Notice explains that the immediate “threatened” listing is made because of the similarity of appearance of the southern white rhino to those rhino that are listed as “endangered” under the ESA. All other rhino are already ESA listed. Treating the southern white rhino as threatened “will substantially facilitate law enforcement actions to protect and conserve all endangered rhino species.” The agency reports that “[o]n January 17, 2012, the OLE (Office of Law Enforcement of USFWS) requested that the southern white rhino be listed as a threatened species based on the similarity of appearance provisions of section 4(e) of the Act and our (FWS) implementing regulations at 50 CFR 17.50.” The agency explains that the immediate listing without prior notice, a comment period and re-noticing of the rule is because “persons could seek to take advantage of the regulatory loophole caused by the similarity of appearance with the southern white rhino before this impending regulation under the Act became effective… (and) the Service reasonably believes a spike in the illegal trade and poaching of endangered rhino species could occur with this delay.” A USFWS press release the day before the official Federal Register Notice, further explained that the similarity of appearance “has allowed traffickers to mislabel the horns of other protected rhino species as white rhino horn in an effort to evade restrictions on sale and transport.”

Both the press release of the agency and the Federal Register Notice state that import permits for hunting trophies will not be required. (“The threatened designation will not change current permitting requirements for sport-hunted trophies of southern white rhino,” says the press release, and “Therefore, a sport-hunted trophy of southern white rhino, legally taken and exported from South Africa or Swaziland would not require a separate ESA regulatory permit to import it into the United States” says the FR Notice.) The USFWS cites Section 9(c)(2) of the ESA, which provides that “non-commercial importation into the United States of threatened species that are listed under CITES Appendix II…are presumed not to be in violation of any provision of the Act or any regulation under the Act….”

So it is proposing that no import permit will be required for the rhino from South Africa and Swaziland, but the interim rule is not yet a final rule. Import permits are already required for white rhino imported from elsewhere under CITES because they are on Appendix I, not Appendix II.
The threatened listing does immediately prohibit the sale of white rhino horn in interstate commerce. Readers don’t want to get caught selling it interstate or attempting to sell it interstate without a permit. (“[t]his interim rule will…make it illegal for any person…to deliver, receive, carry, transport, or ship southern white rhino…in foreign or interstate commerce…; sell or offer for sale in interstate and foreign commerce any specimen of southern white rhino.”) It remains to be seen what interstate commercial transactions will be issued permits.

The rhino is not being listed because of its own status. Southern white rhino are at record numbers despite escalating poaching of all rhino. A “growing market demand is fuelling a dramatic increase in rhino poaching” and a “transition from ordinary poachers to groups has created additional challenges for law enforcement personnel”. In 1895 the southern white rhino was considered extinct until a small population of less than 20 was discovered in Natal, South Africa. The population has since been built to more than 20,160 in 2012. This is thanks not only to the efforts of the South African government, but also private landowners.

The USFWS states that “[p]rivate landowners have made a large contribution toward rhino conservation through private ownership and custodian agreements on behalf of range states, and account for almost 25 percent of the African rhino populations….Private owners contribute roughly 20,000 sq. km. (4,942,110 acres) of land toward rhino conservation efforts.” The Notice emphasizes the importance of these privately-owned lands and that “[t]he possible loss of these privately-owned lands has the potential to result in overcrowding or higher population densities within protected areas…which are already under siege from poachers.” This reasoning and the tenor of the whole listing suggests that import permits or other restrictions on white rhino trophy hunting are not in the plans. The white rhino benefits from trophy hunting and needs that added, legitimate value more than ever.

Author: John J. Jackson,