# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

A rgued October 13, 2017 Decided December 22, 2017

No. 16

- 5358

S AFARI C LUB I NTERNATIONAL AND N ATIONAL R IFLE A SSOCIATION OF A MERICA

, A PPELLANTS

v.

R YAN Z INKE

, I N H IS O FFICIAL C APACITY AS S ECRETARY OF

THE U.S. D EPARTMENT OF THE I NTERIOR

, ET AL

., A PPELLEES

Consolidated with 16

- 5362

Appeals from the United States District Court
for the District of Columbia (No. 1:15

- cv

- 01026) (No. 1:14

- cv

- 00670)

Douglas S. Burdin argued the cause for appellants. With
him on the briefs were Anna M. Seidman

, Christopher A.
Conte , and Michael T. Jean

. Jeremy E. Clare entered an

appearance.

Avi Kupfer , Attorney, U.S. Department of Justice, argued the cause for federal appellees. W ith him on the brief were2

Jeffrey H. Wood , Acting Assistant Attorney General, and Andrew C. Mergen , and Matthew Littleton , Attorneys.

Michael Ray Harris and Jennifer E. Best were on the brief
for a ppellees Friends of Animals, et al

. Courtney R. McVean

en tered an appearance.

Tanya Sanerib

, Sarah Uhlemann

, and Anna Frostic were on the brief for amici curiae The Humane Society of the United States, et al. in support of defendants

- appellees.

Before: G ARLAND

, Chief Judge

, T ATEL

, Circuit Judge , and

E DWARDS

, Senior Circuit Judge

.

Opinion for the Court filed by Senior Circuit Judge

E DWARDS

.

E DWARDS

, Senior Circuit Judge : By regulation issued pursuant to the Endangered Species Act (“ESA”), sport

- hunted African elephant trophies may only be imported into the Un ited States if, among other things, the U.S. Fish and Wildlife Service (“Service”) makes “[a] determination . . . that the killing of the trophy animal will enhance the survival of the species.” 50 C.F.R. § 17.40(e)(6)(i)(B) (“Special Rule”). On April 4, 2 014, the Service issued a press release stating that the agency lacked sufficient information to support a positive enhancement determination with respect to elephant trophies
hunted in Zimbabwe during the 2014 hunting season . The finding, which was subseq uently published in the Federal Register, banned the importation of such trophies going forward from the date of the finding. The Service also made negative enhancement findings in July of 2014 and March of 2015, each time concluding that information conce rning the
size of the Zimbabwe an elephant population and status of
conservation efforts in Zimbabwe did not support a conclusion3

that killing the animal “will enhance the survival of the species.” Id.

Safari Club International (“Safari Club”) and the Nat ional Rifle Association (“NRA”) (collectively, “Appellants”) filed
suit in District Court to challenge the 2014 and 2015 findings

. Appellants claim ed that the agency’s actions were arbitrary and capricious under the Administrative Procedure Act (“APA”)
and violated the ESA because

, inter alia

, in its determinations to ban the elephant imports, the Service impermissibly relied

on standards that are more stringent than the statutory

r equirement s in the ESA . The District Court denied Appellants ’ motion for summary judg ment on these claims and granted judgment for the Service. For the reasons explained below, we affirm judgment for the Service on these claims

.

Appellants also contend ed that the Service erred in adopting the 2014 and 2015 enhancement findings without adhering to the notice

- and

- comment rule

- making requirements
of the APA. See 5 U.S.C. § 553. The District Court rejected this claim on the ground that the enhancement findi ngs were the product of adjudications and, therefore

, not covered by the
APA’s rule

- making requirements. The District Court erred on this point. Under the APA, a “rule” is “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” Id. § 551(4). And a s the Supreme Court has explained, rule

- making procedures are “used in th e formulation of a basically legislative

- type judgment, for prospective application only, rather than in adjudicating a particular set of disputed facts.” United States v. Fl. E. Coast Ry. Co. , 410 U.S. 224, 246 (1973). The enhancement findings in this case fit
these definitions of “rule” to a tee. Therefore, the Service erred in adopting the findings without first following the notice

- and

comment rule

- making requirements of the APA

. Accordingly,4

w e reverse the District Court’s grant of summary j udgment in
favor of the Service on the § 553 claim. The case will be
remanded to the District Court with instructions to remand to the Service so that it may initiate rule making to address enhancement findings for the time periods at issue in this case.

I. B ACKGROUND

A. Statutory and Regulatory Background

1. The CITES Treaty

The United States and Zimbabwe are parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087 (“CITES” or “Convention”). See 16 U.S.C. § 1538(c ) (1) (incorporating the Convention into U.S. domestic law through the ESA). The Convention regulates the international trade of imperiled species that are listed i n its appendices, which include African elephants, or Loxodonta a fricana , from Zimbabwe. See, e.g.

, id. § § 1537a

– 1539; 50 C.F.R. § 17.11.

As relevant here, Appendix I lists species that are

“ threatened with extinction which are or may be affected by
trade

, ” CITES art. II( 1 )

, 27 U.S.T. at 1092, and Appendix II lists species th at may become threatened with extinction unless their trade is regulated, id. art. II( 2 ) , 27 U.S.T. at 1092 . Parties to the Convention may not allow trade in species listed i n the appendices except in accordance with the treaty’s provisions.
Id. art. II( 4 ) , 27 U.S.T. at 1092

.

Appendix I species may be shipped internationally only if both the importing and exporting countries grant permits, which are subject to certain conditions. Id. art. III , 27 U.S.T. at
1093

– 95 . Among the requirements for a permit to i ssue, both5

countries must make a “non

- detriment” finding, certifying that the trade in threatened species “will not be detrimental to the
survival of that species.” Id. art. III(2)(a) , 27 U.S.T. at 1093 ; id. art. III(3)(a) , 27 U.S.T. at 1093 . Until 1994, t he Convention also required an importing country to make an “enhancement finding,” a determination that “the killing of the animal . . . would enhance the survival of the species.” Retention of Threatened Status for the Continental Population of the Africa n Elephant, 57 Fed. Reg. 35,473, 35,485 (Aug. 10, 1992). The parties to the Convention removed the enhancement fin ding requirement from the treaty by resolution in 1994.

For Appendix II species, the Convention requires a permit from the exporting country only. CITES art. IV , 27 U.S.T. at
1095

– 97 . While subject to the non

- detriment finding requirement, permits for Appendix II species have never been conditioned on the exporting country making an enhancement finding. In 1997, over opposition from the United States, the parties to the Convention transferred African elephants in Zimbabwe from Appendix I to Appendix II. Changes in List of Species in Appendices to the [CITES], 62 Fed. Reg. 44,627, 44,628

– 29 (Aug. 22, 1997).

It is undisputed that the proscripti ons in the Convention

are a floor, not a ceiling, for protection of Appendix II species. The treaty “in no way affect[s] the right of Parties to adopt . . . stricter domestic measures regarding the conditions for trade, taking possession or transport of sp ecimens of species included in Appendices I, II, and III, or the complete prohibition
thereof.” CITES art. XIV(1), 27 U.S.T. at 1108.

2. The Endangered Species Act

Congress passed the Endangered Species Act (“ESA”), 16 U.S.C. § § 1531

– 44 (2000), to provide for the conservation of6

“endangered” and “threatened” species, id. § 1531(b); see id. § 1532(6) (defining “endangered species” as “any species which is in danger of extinction throughout all or a s ignificant portion of its range ” ); id. § 1532(20) (defining “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all

or a s ignificant portion of its range”) . Except in narrow circumstances, the Act generally prohibi ts the importation of endangered species into the United States. Id. § 1538(a)(1)(A);
50 C.F.R. § 17.21(b).

For threatened species, s ection 4(d) requires the Service to “issue such regulations as [it] deems necessary and advisable to provide for the[ir ] conservation.” 16 U.S.C. § 1533(d). Pursuant to this authority, the Service has promulgated a regulation extending the general import prohibition on endangered species to threatened species. See 50 C.F.R. § 17.31(a). The Service reserved the right, howev er, to create “special rule[s]” regarding threatened species, which “contain all the applicable prohibitions and exceptions” regarding import of that species. Id. § 17.31(c). In other words, “the [ S ervice] has, with this regulation, established a regime in which the prohibitions established for endangered species are extended automatically to all threatened species by a blanket rule and then withdrawn as appropriate, by special rule for particular species and by permit in particular situations.” Sweet

Home Chapter of Cmtys. for a Great Or. v. Babbitt , 1 F.3d 1, 5 (D.C. Cir. 1993).

Since 1978, the Service has listed the African elephant as a threatened species under the ESA, see Listing of the African Elephant as a Threatened Species, 43 Fed. Reg. 20,499, 20,503 (May 12, 1978); 50 C.F.R

. § 17.11(h), and maintained a Special R ule governing its importation, see 50 C.F.R. § 17.40(e) (“Special Rule”) . In 1992, the Service added a7

provision t o the Special R ule providing that sport

- hunted African elephant trophies may only be imported into the United States under certain conditions, including that the Service must make “[a] determination . . . that the killing of the trophy animal
will enhance the survival of the species.” Id. § 17.40(e)(6)(i)(B). This means that, in the United States, the
enhanceme nt finding requirement continues to apply in accordance with the Special Rule under the ESA. T he 1994
removal of the enhancement finding requirement from the
Convention for the issuance of import permits for Appendix I species “d[id] not supersede import or export requirements pursuant to [the ESA].” 62 Fed. Reg. at 44,633.

T he Service maintains the right to make nation

- wide enhancement findings sua sponte

, “on a periodic basis upon receipt of new information on the species’ population or management.” Id . Current findings “remain in effect until the Service finds, based on new information, that the conditions of the special rule are no longer met and has published a notice of any change in the Federal Register.” Id.

Finally, section 9(c)(2) of the ESA provides that “[a]ny importation into the United States” of non

- endangered, Appendix II species such as Zimbabwean elephants “shall,”
where certain cond itions are satisfied, “be presumed to be an importation not in violation of any provision of [the ESA] or any regulation issued pursuant to [the ESA].” 16 U.S.C. § 1538(c)(2).

3. The Enhancement Findings

In 1997, the Service made a positive enhancement findi ng for sport hunting of African elephants in Zimbabwe

. Memorandum, Enhancement Finding for African Elephants Taken as Sport

- hunted Trophies in Zimbabwe, U.S. Fish and8

Wildlife Service (July 2, 1997), reproduced at Joint Appendix (“J.A.”) 373

– 76. The Servic e explained that revenues generated by sport hunting benefited rural communities and elephant conservation programs in Zimbabwe. In addition, Zimbabwe’s government had in place conservation and anti

poaching programs to protect the elephants. And “one of t he best sets of elephant population data in Africa” indicated that Zimbabwe’s elephant population was growing at “about 5% per annum,” from 46,000 elephants in 1980 to 66,000 in 1997.
J.A. 373

– 74. Thus, “[b]ased on available information,” the
Service found that “the import of sport

- hunted elephant trophies from Zimbabwe enhances the survival of the species.”
J.A. 373.

Those findings remained in effect until April 4, 2014, when the Service made an interim negative enhancement finding and suspended the impo rtation of sport

- hunted elephant trophies from Zimbabwe. Memorandum, Enhancement Finding for African Elephants Taken as Sport

- hunted Trophies in Zimbabwe during 2014, U.S. Fish and Wildlife Service (Apr. 17, 2014), reproduced at J.A. 496

– 501. T he Service noted that publicly available survey information suggested that “the elephant population in Zimbabwe has declined from 84,416 elephants in 2007 to 47,366 elephants in 2012.” J.A. 500. But the Service explained that “[t]he most significant aspect of [its] analysis is the lack of recent data on what is occurring in Zimbabwe.” J.A. 501. The Service had not received any information in writing from the Zimbabwe an Government since 2007, when it had received three undated and unsigned papers that relied on dated information. And the Service had gained little new information from the occasional meetings it
had with Zimbabwe an officials since 2007. Lacking current
data from the Zimbabwe an government regarding its conservation programs and the status of the elephant population, the Service determined that it was not possible “to9

make a positive finding that sport

- hunting is enhancing the survival of the species.” Id. It therefore temporarily banned imports of sport

- hunted trophies of elephants from Zimbabwe
until better information could be obtained from the
Zimbabwe an government, and sent a letter to authorities in Zimbabwe requesting more information. J.A. 468

– 69.

The Service announced the negative enhancement finding in a press release on its website on April 4, 2014, but did not publish notice of the finding in the Federal Register until May 12, 2014. Interim Suspension of Imports of Elephant Trophies
from Zimbabwe , 79 Fed. Reg. 26,986 (May 12, 2014). Without expressly inviting public comment, the notice stated that the Service was “actively pursuing additional information” from Zimbabwe and “other sources” to “make a final [enhancement]
determination” for 2014. Id. at 26,987.

Over the next several months, the Service received and
considered information submitted by the Zimbabwe an government, safari outfitters, including Safari Club, and conservation and hunting associations. Based on the submitted information, the Service issued a final negativ e enhancement finding on July 17 , 2014. Memorandum, Enhanceme nt Finding for African Elephants Taken as Sport

- hunted Trophies in Zimbabwe during 2014, U.S. Fish and Wildlife Service (July 22, 2014), reproduced at J.A. 520

– 32; see also Notice of Suspension of Imports of Zimbabwe Elephant Trophies Taken
in 2014 on or A fter April 4, 2014, 79 Fed. Reg. 44,459 (July 31, 2014). The Service explained that Zimbabwe’s population estimates for its elephants were “clearly based on outdated information.” J.A. 525. The few recent surveys provided by
Zimbabwe exhibited a number of faults that rendered them prone to double counting. Id. The submissions similarly lacked reliable information regarding Zimbabwe’s management plans,
anti

- poaching efforts, and regulation of elephant hunting. Id. at10

524

– 28. Unable to make a positive enhance ment finding on the basis of the new information, the Service forbid the importation of elephants harvested in Zimbabwe from April 4, 2014 through the end of the year.

On March 26, 2015, the Service made yet another negative enhancement finding, banning the importation of trophies of “elephants taken in Zimbabwe during the 2015 hunting season
and future hunting seasons.” Memorandum, Enhancement Finding for African Elephants Taken as Sport

- hunted Trophies
in Zimbabwe On or After January 1, 2015, U.S. Fish and Wildlife Service (Mar. 26, 2015 ), reproduced at J.A. 588

– 605;
id. at 588; see also Notice of Continued Suspension of Imports of Zimbabwe Elephant Trophies Taken On or After April 4, 2014, 80 Fed. Reg. 42,524 (July 17, 2015). Once again, the finding was “due to the Service being unable to make [a positive] enhancement finding even after receiving additional materials from Zimbabwe’s Parks and Wildlife Management Authority and others,” including Safari Club. 80 Fed. Reg. at 42,525.

B. Procedural Background

On April 21, 2014, Safari Club , later joined by the NRA, filed a complaint in the District Court, challenging the Service’s April 4, 2014 enhancement finding pertaining to importation of African elephant trophies from both Zimbabwe
and Tanzania. Safari Cl ub Int’l v. Jewell , 47 F. S upp. 3d 29, 31 (D.D.C. 2014). The District Court granted the federal
defendants’ motion to dismiss the Tanzania n claims on the grounds that the plaintiffs had not exhausted their administrative remedies, since no member of the Sa fari Club or NRA had applied for an import permit for any Tanzanian elephant. Safari Club Int’l v. Jewell , 76 F. Supp. 3d 198, 206

– 09 (D.D.C. 2014). The court also allowed the plaintiffs to11

amend their complaint to add claims challenging the July 2014
enha ncement finding. Id. at 205

– 06. The Court of Appeals
reversed the dismissal of the Tanzania n claims, holding that
Safari Club and the NRA had standing, the April and July findings were final agency actions, and Safari Club did not need to seek a permit in order to exhaust its administrative
remedies. Safari Club Int’l v. Jewell , 842 F.3d 1280, 1285

– 90 (D.C. Cir. 2016).

In June 2015, Safari Club and the NRA (“Appellants”) filed a separate action alleging that the Service’s March 26, 2015
enhancement findi ng violated the ESA, 16 U.S.C. § 1531 et

seq. , and the APA , 5 U.S.C. § 706. Complaint for Declarative and Injunctive Relief, ¶¶ 88

– 125 (June 30, 2015); see also Safari Club Int’l v. Jewell , 213 F. Supp. 3d 48, 51 (D.D.C. 2016). Members of both organizations had harvested elephant s in Zimbabwe in 2014 and 2015. However, as a result of the challenged enhancement findings, the members were barred from importing the trophies into the United States. Complaint, ¶¶ 18, 24; Appellants’ Br. 57

– 58. The District Court
consolidated the two Zimbabwe

- related cases and granted
leave to Friends of Animals and the Zimbabwe Conservation
Task Force to intervene as defendants. That consolidated case is the subject of this appeal.

The plaintiffs made four pri ncipal ESA and APA claims before the District Court. First, they claimed that the Service’s reasoning was arbitrary and capricious, in part because the findings imposed a stan dard greater than “enhancement

. ” Second, they argued that by resting on the absen ce of evidence that sport hunting enhances the survival of the African elephant in Zimbabwe, the findings violated the presumption of legality
established in s ection 9(c)(2) of the ESA. Third, they claimed
that the removal of the enhancement

- finding requir ement from the Convention in 1994 required the Service to initiate rule12

making with respect to the Special Rule’s enhancement condition. Finally, the plaintiffs contended that the three enhancement findings were rules subject to notice

- and

comment rule

- mak ing procedures under § 553 of the APA. See Safari Club , 213 F. Supp. 3d at 61.

Safari Club and the NRA moved for summary judgment on February 18, 2016. The Service and intervenors opposed that
motion and cross

- moved for summary judgment in their favor.

On September 30, 2016, the District Court entered summary judgment for the government on every claim but one, which the Service has not appealed. Safari Club , 213 F. Supp.
3d at 51 . The court held that (1) none of the three findings were arbitrary and capr icious, id. at 73

– 81; (2) it was reasonable for the Service “to interpret the Special Rule as rebutting [ s ection 9(c)(2) of the ESA’s] statutory presumption,” id. at 66; (3) the Service was not required to initiate rule

- making proceedings
under the ESA whe n the enhancement condition was removed from CITES in 1994, id. at 66

– 67; and (4) the enhancement findings resulted from adjudications and therefore were not subject to the APA’s rule

- making requirements, id. at 62

– 64.

Safari Club and the NRA have now app ealed the denial of their motion for summary judgment and the entry of judgment for Appellees.

II. A NALYSIS

A. Standard of Review

“We review an order granting summary judgment de novo

, viewing the evidence and drawing all reasonable inferences in
favor of the nonmoving party. ” Chenari v. George Washington

Univ ., 847 F.3d 740, 744 (D.C. Cir. 2017)

. “In a case like the13

instant one, in which the District Court reviewed an agency action under the APA, we review the administrative action directly, according no parti cular deference to the judgment of
the District Court. ” Holland v. Nat’ l Mining Ass’n, 309 F.3d 808, 814 (D.C. Cir. 2002).

The APA requires that we “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or oth erwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A disputed action also may be set aside as arbitrary and capricious if the agency has acted “without observance of procedure required by law.” Id. § 706(2)(D) ; s ee Meister v. U.S. Dep’ t of Agric.

, 623 F.3d 363, 371 (6th Cir. 2010) (noting that “ even in cases arising under § 706(2)(D), the arbitrary

- and

- capricious standard frequently governs ”)

. In apply ing the arbitrary and capricious standard, we consider whether the agency “has relied on factors wh ich Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for
its decision that runs counter to the evidence before the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Au to. Ins. Co., 463 U.S. 29, 43 (1983). T he court may “not . . . substitute its [own] judgment for that of the agency,” id. , and deference is especially warranted where the decision at issue “requires a high level of technical expertise,” Marsh v. Or. Nat.
Res. Council , 490 U.S. 360, 377 (1989). Nonetheless, we must determine whether the Service “examine[d] the relevant data and articulate[d] a . . . rational connection between the facts
found and the choice made.” State Farm , 463 U.S. at 43 (internal quotat ion marks omitted).

The APA also provides that a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).14

In considering whether an agency’s construction of its authorizing statute is permissible, we apply “the ordinary tools of statutory construction” to “determine ‘whether Congress has directly spoken to the precise question at issue.’” Ci ty of Arlington v. FCC

, 569 U.S. 290, 296 (2013) (quoting Chevron
U.S.A. Inc. v. Nat. Res. Def. Council, Inc ., 467 U.S. 837, 842 (1984) ) . “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give ef fect to the unambiguously expressed intent of Congress.” Chevron

, 467 U.S. at 842

– 43. If the statute is ambiguous and the agency has acted pursuant to congressionally delegated authority to make law and with the intent to act with the force of law, we
will defer to the agency construction so long as it is reasonable.
United States v. Me ad Corp ., 533 U.S. 218 , 226

– 27 , 229 (2001) . “[T]he question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or
not.” City of Arlington , 569 U.S. at 301

.

Finally , “[w]e must give sub stantial deference to an agency’ s interpretation of its own regulations. Our task is not to decide which among several competing interpretations best serves the regulatory purpose. Rather, the agency’s interpretation must be given controlling weight unless it is plainly errone ous or inconsistent with the regulation.” Castlewood Products, L.L.C. v. Norton , 365 F.3d 1076 , 1082 (D.C. Cir. 2004) ( quoting Thomas Jefferson Univ. v. Shalala

, 512 U.S. 504, 512 (1994)).

B. The Meaning of “Enhance” in the Service ’s Regulation

Appellants first argue that the disputed enhancement findings should be overturned because the Service failed to apply the correct standard in determining whether to ban15

elephant imports. As noted above , the Special Rule forbids the importation of sport

- hu nted elephant trophies absent a “determination” by the Service “that the killing of the trophy
animal will enhance the survival of the species.” 50 C.F.R. § 17.40(e)(6)(i)(B) (emphasis added). Appellants claim that the
Service banned elephant imports on th e ground that there was no evidence to support findings that sport hunting would “ensure” the survival of the elephants. Appellants’ Br. 32

– 36. Appellants thus contend that th e Service erred because it applied a standard that is more stringent than the “ en hance ”
standard in the Service’ s r egulation

.

Appellants appear to assume that 50 C.F.R. § 17.40(e)(6)(i)(B) requires the Service to make a positive
enhancement determination if it finds any potential benefit to
the survival of elephants from sport hunting. In Appellant s’ view, it does not matter whether t he benefits of sport hunting are outweighed by its risks to the threatened species. Thus,
accord ing to Appellants, the Service was obliged to make a positive enhancement finding once it found that t here were some benefits from hunting.

In particular, Appellants argue that it was error for the
Service to consider whether the overall elephant population had declined, and to take into account non

- sport

- hunting related
threats to the elephants, such as poaching. Appellants consider
these matters irrelevant with respect to whether sport hunting

w ill “mak [ e ] the situation better” for elephants than the absence of hunting. Appellants’ Reply Br. 3; see Appellants ’ Br. 34. Appellants also point out that in both the July 2014 and March 2015 findings, the Service acknowledged that “scattered around Zimbabwe” are “‘bright spots’ of elephant conservation efforts,” but concluded that “there are not enough of these ‘bright spots’ to overcome the problems currently facing Zimbabwe elephant populations and to support a finding that16

sport hunting is enhancing the survival of the species.” J.A. 532, 605. Appellants insist that requiring conservation efforts to “overcome” threats to the elephants amou nts to a requirement that sport hunting guarantee, not merely “enhance,” elephant survival. Appellants’ position is specious.

The Service reasonably interpreted the Special Rule to require a holistic inquiry into whether hunting enhances the species’ surv ival on net, taking into account the sustainability of the existing elephant population in light of the obvious detriments hunting poses to elephant survival. As the Service explained in its March 2015 finding, the enhancement
determinations , among other t hings, “look[] to determine [1] if a country has sufficient numbers of elephants to support a hunting program, [2] if the country has a management plan and adequate laws and regulations to effectively implement a hunting program, and [3] if the participati on of U.S. hunters in the program provides a clear benefit to the species to meet the [Special Rule’s] requirements for . . . import.” J.A. 589. Appellants would have the Service focus exclusively on the last
consideration

– the benefits of hunting

– in is olation from information about the viability of the elephant population being hunted and Zimbabwe’s ability to regulate the hunting

program.

Nothing in the Special Rule supports Appellants’ reading of “enhance.” The sustainability of Zimbabwe’s elephant population and the status of the government’s elephant management plan bear directly on the effects of hunting on elephant survival. For example, one of the Service’s concerns is that the current level of offtake from sources other than sport hunting, such as poaching, culling, or problem animal control, might be higher than appropriate to maintain a healthy population of elephants. See , e.g. , Memorandum, July 22, 2014 Enhancement Finding, J.A. 524; see also 80 Fed. Reg. at17

42,526; 79 Fed. Reg. at 44,460. I n th ese circumstances , sport hunting might on net decrease the number of elephants in the
wild if the existing population is simply too sparse to support reductions by hunting.

The Service’s interpretation of its regulation is entirely
consistent with the definition of “enhance” and perfectly
reasonable. Appellants define “enhance” as to “ heighten, increase.” Appellants’ Br. 32 ( citing Merriam

- Webster.com, “Enhance” (Dec. 5, 2017), http://www.merriam

- webster.com/ dictionary/enhance). That definition in no way forecloses the Service from requiring hunting to “increase” elephant survival on the whole, taking into account the full biological and institutional context bearing on the health of the species. The Service’s interpretation of its Special Rule easi ly passes muster under the applicable standard of review. See Thomas Jefferson

Univ. , 512 U.S. at 512 (holding that “the agency’s interpretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation”).

C. Appella nts’ Claim that the Enhancement Findings
A re Foreclosed by Section 9(c)(2) of the ESA

Appellants additionally argue that the Service’s negative enhancement findings are improper because they rest on the
absence of evidence that sport hunting enhances the survival of the species , rather than on an affirmative finding that sport hunting fails to enhance the survival of the African elephant in
Zimbabwe . Appellants assert that the Service’s approach is
based on an i mpermissible construction of the ESA because

s ection 9(c)(2) of the act provides that “[a]ny importation into
the United States” of non

- e ndangered, Appendix II species
“shall ” ( where certain conditions not at issue here are satisfied ) “be presumed to be an importation not in violation of any provision of [the ESA] or any regulation issued pursuant to [the18

ESA].” 16 U.S. C. § 1538(c)(2) . Given that the Special Rule is a “regulation issued pursuant to [the ESA],” id. , Appellants
insist that s ection 9(c)(2) app lies to its terms. Accordingly, because the Service found the evidentiary record inadequate to make an affirmative determination as to whether sport hunting was a net positive for Zimbabwe’s African elephant population, Appellants contend that the statutor y presumption required the Service to authorize importation. We find no merit
in this claim. We also find that t he Service ’s interpretation of
the ESA is reasonable and entitled to deference. See City of Arlington , 569 U.S. at 296

.

“To establish a ‘presumption’ is to say that a finding of the predicate fact . . . produces a required conclusion in the absence of explanation .” St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 506 (1993) (internal quotation marks omitted) (emphasis added). Thus, a presumption is generally rebuttable by the presentation of contrary evidence. See F ED

. R. E VID

. 301; Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 254 (1981)

. Indeed, Appellants acknowledge that the presumption is not
conclusive. See Oral A rg. Recording 1:52

– 2:09 (“We[, the Appellants,] are not arguing . . . that s ection 9(c)(2) . . . creates a conclusive presumption of importability.”).

In this case, there is no serious dispute over the fact that the regulatory criteria for import were no t satisfied . Therefore, the

s ection 9(c)(2) presumption was overcome by the combination of the Special Rule, the administrative record underlying the Special Rule, and the fact

- finding in this case with respect to the current status of Zimbabwe’s elephant population and
management program . The Special Rule says that “sport

hunted trophies may be imported i nto the United States provided . . . [a] determination is made that the killing of the trophy animal will enhance the survival of the species.” 50
C.F.R. § 17.40(e)(6)(i). N o such determination was made here.19

Any “presumption” that this precondition was satisfied is easily rebutted by the self

- evident fact that it was not.

The principal problem with A ppellants’ argument is that it
mischaracterizes the Spec ial Rule and the Service’s application
of the rule . The Special Rule does not require the Service to affirmatively find that killing the species does not enhance species survival in order to ban importation of sport

- hunted elephant trophies. The Special Ru le allows such imports only if, among other things, the Service can find that hunting
enhances survival. Given that an affirmative enhancement finding is a regulatory precondition to the lawful importation of Zimbabwean elephants, so too, by necessary exte nsion, is an adequate evidentiary basis for making such a finding. Therefore, the Service’s conclusion that it lacked evidence to make a positive enhancement finding , together with the Special Rule’s affirmative enhancement condition and the underlying
adm inistrative record that led to the rule’s adoption, rebuts any presumption that the importation of African elephants complies with the Special Rule.

Section 9(c)(2) in n o way constrains the Service’s s ection 4(d) authority to condition the importation of threatened Appendix II species on an affirmat ive enhancement finding.
Under s ection 4(d) of the ESA , the Service “shall issue such regulations as [it] deems necessary and advisable to provide for
the conse rvation of [threatened] species ” and may “prohibit with respect to any threatened species any act prohibited . . . with respect to endangered species.” 16 U.S.C. § 1533(d). Because the Service may generally bar imports of endangered species, see id. § 1538(a)(1) (A)

, it may do the same with respect to threat ened species under section 4(d), s ee id

. § 1533(d). Appellants do not dispute that the promulgation of
a blanket ban would be permissible and rebut the presumptive legality of Zimbabwean elephant imports

. If the Se rvice has the20

authority to completely ban imports of African elephants by regulation under section 4(d) , it logically follows that it has authority to allow imports subject to reasonable conditions, as provided in the Special Rule

. Therefore, even assuming that

s ection 9(c)(2) applies to the Special Rule, it merely establishes a presumption that the regulation’s conditions have been met

, absent a finding to the contrary. It does not dictate the conte nt of the conditions

.

In fact, Appellants have conceded t hat the Special Rule’s
enhancemen t condition is consistent with s ection 9(c)(2). At oral argument, counsel for Appellants repeatedly disavowed any argument that the Service lacked the authority to require a positive enhancement finding as a condition of im portation of African elephant trophies. See Oral Arg. Recording 1:30

– 2:16 (“We are not arguing that s ection 9(c)(2) prevents the Service from enacting a special rule under Section 4(d). We are not arguing that [s ection] 9(c)( 2) overrides any such special rule. We are not arguing that s ection 9(c)(2) conflicts with s ection 4(d) of the ESA. And we are not arguing . . . that section 9(c)(2)
. . . preempts s ection 4 or creates a conclusive presumption of importability.”); see also id. at 12:25

– 16:06 ([Question:] “Are you saying that the regulation with the elephant rule is unlawful under the statute?” [Answer:] “No.”).

In sum, Appellants do not dispute that the Service has authority under the ESA to promulgate regulations that res trict the importation of African elephant trophies. The Service has chosen to exercise this authority by requiring an affirmative demonstration that sport hunting enhance s the survival of the African elepha nt as a precondition to import. Even if Appellants are correct that the statutory presumption applies to this precondition, the presumption has been rebutted by an affirmative finding of a lack of evidence of enhancement.21

D. The Removal of the Enhancement Requirement
from the Convention

Appellants additionally contend that the 2014 and 2015 enhancement findings should b e overturned on the ground that they cannot be squared with the 1994 amendment to the Convention. We find no merit in Appellants’ arguments resting
on this claim.

As noted above, before 1994, both the Convention and the Special Rule required the Service to make an enhancement determination before issuing a permit to import the trophy of an Appendix I species. See 57 Fed. Reg. at 35,485 (adding the enhancement requirement to t he Sp ecial Rule in 1992). The
Convention was amended to remove this requirement in 1994. However, t he United States retained the requirement in its African elephant Special Rule issued under the ESA. See 50
C.F.R. § 17.40(e)(6)(i)(B); 62 Fed. Reg. at 44,633 (ex plaining that the enhancement condition “continue[d] to apply” after African elephants were transferred to Appendix II of the Convention). Appellants argue that the Special Rule cannot stand now that the enhancement requirement has been
eliminated from the Convention. This claim is meritless.

First, Appellants allege that the Service “violated [ § 553 of] the APA by changing a regulation

— retaining an enhancement finding requirement although the reason for it disappeared

— without going through a proper rulema king process.” Appellants’ Br. 52. Appellants are mistaken. The fact that the Service continued to apply the enhancement condition after the 1994 amendment of the Convention did not in any way alter the Special Rule.

Second, Appellants argue that the sole reason the Service added the enhancement condition to the Special Rule was to22

comply with the Convention. Appellants’ Br. 54. Thus, according to Appellants, once the provision was removed from the Convention, the only justification for the Special Rule’s enhancement condition disappeared and the agency was obligated to explain its continued reliance on the provision. Appellants’ view of the Special Rule and its purposes is off
base.

One purpose of the enhancement condition was to imp lement the Convention. However, another purpose was to promote the conservation of African elephants by authorizing only those imports of spo rt

- hunted trophies that enhance elephants’ survival. In the preamble to the Special Rule, the
Service stated that s port hunting “provide[s] financial support programs for elephant conservation .” 57 Fed. Reg. at 35,485. In response to a comment, the Service explained that the Special Rule “supports . . . carefully regulated consumptive uses of African elephants” like sp ort hunting “as mechanisms for attaining revenues to enhance elephant and wildlife management throughout the African continent.” Id. at 35,476. And in 1997, the Service reiterated that the enhancement condition “ensure[s]” that each country’s management

pr ogram “is promoting the conservation of the species.” 62 Fed. Reg. at 44,633. The 1994 amendment of the Convention did not change the pro

- conservation purpose of the Special Rule’s enhancement condition. Therefore, the Service had no obligation to reconsid er the Special Rule or explain its failure
to do so.

Third, “if a significant factual predicate of a prior decision . . . has been removed,” an agency may be petitioned to pursue
rule making to “reconsider” its approach

. WWHT, Inc. v. FCC, 656 F.2d 807, 8 19 (D.C. Cir. 1981). However, judicial review of an agency’s denial of a petition to initiate rule making “is extremely limited and highly deferential.” Massachusetts v.23

EPA , 549 U.S. 497, 527

– 28 (2007); see also WildEarth
Guardians v. EPA , 751 F.3d 649

, 653 (D.C. Cir. 2014) ; New York v. U.S. Nuclear Regulatory Comm’n , 589 F.3d 551, 554 (2d Cir. 2009) (citing Massachusetts v. EPA and noting that
review of a denial of rule making has been said to be “akin to

non

- reviewability” and falls “at the high end of the range of deference and an agency refusal is overturned only in the rarest and most compelling of circumstances,” “typically involv[ing] plain errors of law”).

In this case, Appellant s did not petition the Service to pursue rule making, so there is no denial of any such petit i on for the court t o review. Furthermore, it is clear that, because some of the principal justifications for the Special Rule have not changed, the Service had no obligation to act sua sponte to revisit the conditions contained in the rule. Indeed, the Special
Rule is perfectly consistent with section 4(d) of the ESA, which authorizes the Service to promulgate rules that are “necessary and advisable to provide for the conservation of [threatened] species.” 16 U.S.C. § 1533(d)

.

Fourth, Appellants’ reliance on FCC v. Fox Television Stations, Inc.

, 556 U.S. 502 (2009)

, is misplaced. It is true that when an agency changes its position regarding a regulatory matter, it must “provide reas oned explanation for its action. ”

I

d. at 515. A s noted above, however, the Service did not change

course when it retained the Special Rule after the Convention
was amended . The Service was fully within its rights to retain its regulatory approach because the Convention expressly allows signatories to e nforce stricter regulations than provided in the treaty. See CITES art. XIV(1)(a) , 27 U.S.T. at 1108

.

Finally, if Appellants ’ complaint in this case was mean t to raise a facial challenge to the Special Rule, the challenge comes too late. T he window to challenge the validity of the regulation24

has long passed. See 28 U.S.C. § 2401 (a) (barring civil claims against the United States “unless the complaint is filed within six years after the right of action first accrues”); Mendoza v.
Perez , 754 F.3d 1002, 1018 (D.C. Cir. 2014); see also Sierra
Club de Puerto Rico v. EPA , 815 F.3d 22, 26

– 28 (D.C. Cir. 2016) (holding that petitioners’ challenge to the application of an old regulation to a new situation was untimely under the Clean Air Act, 42 U.S.C

. § 7607(b)(1) )

.

E. The Service’s Failure to En gage in Notice

- and

Comment Rule Making Before Adopting the Enhancement Findings

The APA provides that when an agency proposes to promulgate a rule , it must follow the procedures set out in
5 U.S.C. § 553. Among other things, the agency must publish

a notice “of proposed rule making” in the Federal Register.
5 U.S.C. § 553(b) . It must then “give interested persons an opportunity to participate in the rule making through submission” of comments, which th e agency must consider. Id. § 553(c). A final rule must contain a statement of its basis and

purposes, id. , and be published in the Federal Register “not less than 30 days before its effective date,” id. § 553(d).

At oral argument before this court , the Service conceded
that it did not c omply with the requirements of § 553 of the APA in issuing its enhancement findings. The Service maintained that it was under no obligation to do so, because, as the District Court found, the findings were the product of
i nformal adjudications and, therefore, not subject to notice

and

- comment requirements. We disagree. The enhancement findings reflect a final rule and, therefore, the Service was required to adhere to the notice

- and

- comment procedures
under 5 U.S.C. § 553.25

1. “Rule Making” Versus “Adjudication” Under the

APA

When agencies have the statutory authority to engage in
rule making and adjudication, they have broad discretion to choose which route to pursue. NLRB v. Bell Aerospace Co. , 416 U.S. 267, 291

– 94 (1974); SEC v. Chenery Corp. , 332 U.S. 194, 203 (1947). But when an agency chooses to issue a rule, and “formal” procedures are not required, it must follow the procedures indicated in § 553. NLRB v. Wyman

- Gordon Co.

, 394 U.S. 759, 763

– 66 (1969) (plurality opinion )

. An agency
may not escape the requirements of § 553 by labeling its rule an “adjudication.” See, e.g.

, id. ; Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs , 417 F.3d 1272, 1284

– 85 (D.C. Cir. 2005) (finding that the Corps’ issuance of nationwide dredge

- and

- fill permits was rule making and not adjudication, and stating that “‘rules is rules,’ no matter their gloss”); Appalachian Power Co. v. EPA , 208 F.3d 1015, 1024 (D.C. Cir. 2000) (“It is well

- established that an agency may not escape the notice and comment requirements . . . by labeling a major substantive legal addition to a rule a mere interpretation.”); Thomas v. New York , 802 F.2d 1443 , 1447 (D.C. Cir. 1986) ( explaining that if EPA’s endangerment finding was binding, then it was a “rule” that “could not be promulgated without notice

- and

- comment procedures” );
Batterton v. Marshall , 648 F.2d 694, 710 (D.C. Cir. 1980) (“[W]here, as here, the agency action satisfies the APA’s definition of a rule and eludes exemptions to § 553, it is procedurally defective unless promulgated with the procedures required by law.”).

The APA defines “rule making” as the “ agency process for formulating, amending, or repealing a rule.” 5 U.S.C. § 551(5). A “rule” is defined “very broadly,” Sugar Cane Growers Coop. of F la. v. Veneman , 289 F.3d 89, 95 (D.C. Cir. 2002), to mean26

“the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4). On the other ha nd, an “adjudication” is the “agency process for the formulation of an order,” id. § 551(7), and an
“order” is “the whole or a part of a final disposition . . . of an agency in a matter other than rulemaking but including licensing,” id. § 551(6).

The Supreme Court has explained that “[t]he basic distinction between rulemaking and adjudication is illustrated by [the] Court’s treatment of two related cases under the Due
Process Clause of the Fourteenth Amendment.” Fl. E

. Coast

, 410 U.S. at 244. In Lo ndoner v. City and County of Denver, 210 U.S. 373 (1908) , the Court held that it violated the Due Process Clause for an agency to tax property that fronted particular streets without providing a hearing for the property
owners. But in Bi

- Metallic Inv. Co. v. State Bd. of Equalization

, 239 U.S. 441 (1915), the Court upheld a state agency’s decision to increase the valuation of all taxable property in Denver without providing any type of hearing for those affected. Central to the distinction was that the agen cy’s action in Bi

Metallic was generally applicable to an open class of all Denver property owners while Londoner involved a particularized order affecting particular owners “in each case upon individual grounds.” Bi

- Metallic , 239 U.S. at 446; see also Fl. E. Coast

, 410 U.S. at 245.

Judicial constructions of a “rule” under the APA follow these precepts

. Two principles stand out. First, most legislative rules are generally applicable. E.g.

, Bell Aerospace , 416 U.S.
at 293

– 94 (characterizing rules as framing “generalized standard[s]” and orders as “individual” and “case

- by

- case”); Neustar, Inc. v. FCC , 857 F.3d 886, 893 (D.C. Cir. 2017) (“Rulemaking scenarios generally involve broad applications27

of more general principles rathe r than case

- specifi c individual determinations.”).

Second, rules generally have only “future effect” while adjudications immediately bind parties by retroactively applying law to their past actions. E.g.

, Wyman

- Gordon Co.

, 394 U.S. at 763

– 66 (plurality op inion); see also id. at 775

– 81 (Harlan, J. and Douglas, J., agreeing with the plurality on this point); Bowen v. Georgetown Univ. Hosp. , 488 U.S. 204, 216

– 17 (1988) (Scalia, J., concurring) (stating that the “central distinction between rulemaking and adjudication” is that “rules have legal consequences only for the future”); Neustar , 857
F.3d at 895 (stating that while “it may be proper to enter an adjudicatory orde r without retroactive effect,” “adjudication is by its nature retroactive”); Catholic Health Initiatives Iowa Corp. v. Sebelius , 718 F.3d 914, 922 (D.C. Cir. 2013) (stating that “an adjudication must have retroactive effect, or else it
would be considered a rulemaking”).

Thus, in United States v. Fl orida East Coast R ailwa y Co.

, 410 U.S. 224 (1973), the Supreme Court explained that the agency’s action resulted in a rule, not an order, because it was “generalized [in] nature” in that it “[was] applicable ac ross the board to all of [a class of] common carriers,” and it was intended “for prospective application only, rather than [used to] adjudicate[e] a particular set of disputed facts.” Id. at 246. In this case, t he 2014 and 2015 enhancement findings had all of the qualities of a legislative rule, so the Service was obligated
to follow the APA’s notice

- and

- comment procedures before promulgating the findings

.28

2. The 2014 and 2015 Enhancement Findings Reflect a

Final Rule

T he disputed enhancement findings in this case applied to
all potential imports of sport

- hunted elephant trophies from
Zimbabwe

, not to any individual parties. See , e.g. , April 2014 Finding, J.A. 501 (“[T]he Service . . . will not allow the import of sport

- hunted elephant trophies taken in Zimbab we after April 4, 2014.”); July 2014 Finding, J.A. 532 (“[N]o elephants harvested during 2014,” except for those harvested before the announcement of the temporary suspension on April 4, 2014, “may be imported into the United States.”); March 2015 Finding, J.A. 605 (“[N]o elephants harvested in Zimbabwe on or after January 1, 2015 may be imported into the United States.”). T he findings did not adjudicate any dispute between specific parties.

Furthermore , the Service’s ban on imports w as only meant

to bind hunters in future permitting adjudications and
enforcement actions , regardless of when they actually harvested their elephant trophy. The April 4, 2014 interim finding, as revised on April 17, 2014, banned importation of
sport

- hunted elephants from Zimbabw e after the date of the finding, April 4, 2014. J.A. 501. The District Court revised the effective date of that finding to May 12, 2014, the date notice was published in the Federal Register, Safari Club , 213 F. Supp. 3d at 73, and the Service has not appe aled that decision. The July finding, which superseded the April finding, likewise applied only to future imports of elephants hunted after April 4, 2014 . J.A. 532. And the March 2015 finding applied to “elephants harvested in Zimbabwe on or after January 1, 2015.” J.A. 605. The latter two findings covered harvests that took place several months before the date of the findings, but they only ban ned the importation of sport

- hunted elephants from Zimbabwe going forward, throughout the rest of the29

relevant yea r. Those findings were not retroactive because their issuance resulted in no immediate legal consequences for any specific parties.

T his is not a case in which the agency made its findings in the course of denying an application for an import permit, as

w as true in Franks v. Salazar , 816 F. Supp. 2d 49 , 54 (D.D.C. 2011) and Marcum v. Salazar , 810 F. Supp. 2d 56 , 64 (D.D.C. 2011), vacated and remanded on other grounds by 694 F.3d 123 (D.C. Cir. 2012). And the Service has not argued that the
enhancement find ings were “licensing” actions. Rather, the 2014 and 2015 enhancement findings simply established a standard binding on the agency

– a negative enhancement finding and ban on imports

– to be applied to future requests to import certain sport

- hunted elephant s, until such time as the
Service decides to issue a new rule based on different
information.

National Biodiesel Board v. EPA , relied on by the Service, actually illustrates this point. 843 F.3d 1010, 1018 (D.C. Cir. 2016). In that case, the EPA certified that the compliance plan of a single entity, an Argentinian association of biofuel producers (“CARBIO”), satisfied the EPA’s regulations. See
id. at 1013

– 15. Domestic biofuel producers alleged the EPA’s approval of CARBIO’s application was a rule making. We held that “EPA’s approval of the . . . plan was a straightforward instance of adjudication.” Id. at 1017

– 18

. Unlike the fin dings in this case, the application’s approval was highly particularized, binding one entity. We emphasized that “[t]he approval, by its own terms, applies only to the CARBIO program; indeed, [the petitioner] never even suggests that an entity other than C ARBIO or its producer

- members could avail itself of the program without making a separate application to
EPA.” Id. at 1018. It would have been a different situation entirely had the EPA suddenly issued a press release, without30

any application before it, th at bound the agency to approving all future certification applications submitted from Argentinian biofuel producers.

Further more , the fact that the negative enhancement findings applied, and did not change, the enhancement standard established in the Spec ial Rule did not make them adjudications. The APA’s definition of “rule” includes certain statements that “implement” and “interpret” law. 5 U.S.C. § 551(4). Here, the three findings on review “implement[ed]” and “interpret[ed]” the Special Rule’s enha ncem ent requirement by issuing negative enhancement dete rmination s for African elephants. Id. And, of course, they also “prescribe [ d ] ” law in the form of enacting new, binding import
bans. Id.

The District Court read Safe Extensions, Inc. v. FAA , 509 F.3d 593 (D.C. Cir. 2007) as holding that an agency action could be an adjudication in the absence of “a pending matter before the agency.” Safari Club , 213 F. Supp. 3d at 63. That case involved an arbitrary and capricious challenge to the FAA’s impo sition of testing requirements on certain companies but not others, through the publication of “advisory
circulars.” Safe Extensions , 509 F.3d at 595. However, Safe

Extensions did not consider whether the circulars were rules, and if so, whether they were subject to notice and comment.

T he decision is therefore inapposite.

Finally, t he Service claims that any challenges to the April finding are moot because the July finding superseded it.

However , the Service admits it did not engage in notice

- and

comment rule making for any of the disputed enhancement findings, including the July finding . T herefore, the dispute over the April finding is not moot.31

3. Harmless Error

Finally, t he Service argues that any error result ing from its
failure to use notice

- and

- comment rule making was not prejudicial to Appellants. We reject this claim.

The court’s decision in Sugar Cane Growers Cooperative of Florida v. Veneman

, 289 F.3d 89 (D.C. Cir. 2002), is controlling. That case involved a similar fai lure to follow
notice

- and

- comment procedures

. The Department of Agriculture (“USDA”) implemented a “payment

- in

- kind program” for sugar in 2001 without proceeding by notice and

comment. Id. at 91

– 92. In January 2001, b efore implementing
the program , the government met with interested persons to hear their concerns about the program

. Id. at 92. B efore announcing the program, “Department employees had approximately a dozen contacts with sugar industry representatives regarding the possibility o f a 2001 program.”
Id. The USDA announced the program by press release and subsequently published notice in the Federal Register in September of 2001. Id. Despite these attempts to provide public notice in the Federal Register and solicit comments from
int erested persons, the court held that the failure to conduct
notice

- and

- comment rule making was not harmless. Id. at 96.

The court explained that “an utter failure to comply with
notice and comment cannot be considered harmless if there is any uncertainty at all as to the effect of that failure.” Id. The court went on to reject the notion that complainants must indicate “additional considerations they would have raised in a comment procedure,” had they been given the opportunity. Id. at 97. The court explai ned:

Here the government would have us virtually repeal

sect ion 553’ s requirements: if the government could32

skip those procedures, engage in informal consultation, and then be protected from judicial review unless a petitioner could show a new
argument

— n ot presented informally

— section 553 obviously would be eviscerated. The government could avoid the necessity of publishing a notice of a proposed rule and perhaps, most important, would not be obliged to set forth a statement of the basis and purpose of th e rule, which needs to take account of the major comments

— and often is a major focus of judicial review.

Id. at 96

– 97.

So, too, in this case. The Service insists that it effectively complied with § 553 because in May 2014 it published notice
of its inter im finding in the Federal Register. However, that notice never invited comment from the public. It merely stated that the agency was “actively pursuing additional information”
from Zimbabwe and “other sources” to “make a final
determination” for 2014. 79 F ed. Reg. at 26,987. This phrasing makes it far from clear that the May notice was soliciting comments from all interested parties. Indeed, while Safari Club submitted comments, the NRA did not. Nor did the July 2014 or March 2015 findings invite public comment. Quite to the contrary, they presented their negative enhancement findings as conclusions at which the Service had already arrived

— as the culmination, in other words, rather than the initi ation, of the decisionmaking process. See 79 Fed. Reg. at 44, 461 (“[T]he Service is unable to make a finding that sport hunting in Zimbabwe is enhancing the survival of the species.”); 80 Fed. Reg. at 42,524 (“[T]he suspension on the import of sport

hunte d African elephant trophies taken in Zimbabwe on or after April 4, 2014, [will] be continued until further notice.”). On the record before us, we hold that Sugar Cane Growers controls.33

Accordingly, we reject the Service’s contention that any error
was harm less.

III. C ONCLUSION

For the reasons set forth above, we affirm in part and

reverse in part. The case will be remanded to the District Court
with instructions to remand the case to the Service so that it may initiate rule making to address enhancement findings for the time periods at issue in this case.

So ordered

.