 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 13, 2017           Decided December 22, 2017

                       No. 16-5358

    SAFARI CLUB INTERNATIONAL AND NATIONAL RIFLE
              ASSOCIATION OF AMERICA,
                     APPELLANTS

                             v.

 RYAN ZINKE, IN HIS OFFICIAL CAPACITY AS SECRETARY OF
     THE U.S. DEPARTMENT OF THE INTERIOR, ET AL.,
                      APPELLEES


                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. With him on the brief were
                                2
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 appellees Friends of Animals, et al. Courtney R. McVean
entered 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: GARLAND, Chief Judge, TATEL, Circuit Judge, and
EDWARDS, Senior Circuit Judge.

  Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

     EDWARDS, Senior Circuit Judge: By regulation issued
pursuant to the Endangered Species Act (“ESA”), sport-hunted
African elephant trophies may only be imported into the United
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, 2014, 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 subsequently 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 concerning the
size of the Zimbabwean elephant population and status of
conservation efforts in Zimbabwe did not support a conclusion
                                3
that killing the animal “will enhance the survival of the
species.” Id.

     Safari Club International (“Safari Club”) and the National
Rifle Association (“NRA”) (collectively, “Appellants”) filed
suit in District Court to challenge the 2014 and 2015 findings.
Appellants claimed 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
requirements in the ESA. The District Court denied
Appellants’ motion for summary judgment 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 contended 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 findings 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 as the Supreme Court has
explained, rule-making procedures are “used in the 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
we reverse the District Court’s grant of summary judgment 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.   BACKGROUND

    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 in its appendices, which include African
elephants, or Loxodonta africana, 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 that 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 in 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 issue, both
                                5
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, the 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 African
Elephant, 57 Fed. Reg. 35,473, 35,485 (Aug. 10, 1992). The
parties to the Convention removed the enhancement finding
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 proscriptions 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 specimens 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 of
                               6
“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 significant
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 significant portion of its range”). Except in narrow
circumstances, the Act generally prohibits the importation of
endangered species into the United States. Id. § 1538(a)(1)(A);
50 C.F.R. § 17.21(b).

     For threatened species, section 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, however, 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
[Service] 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 Rule governing its importation, see 50 C.F.R.
§ 17.40(e) (“Special Rule”). In 1992, the Service added a
                                7
provision to the Special Rule 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
enhancement finding requirement continues to apply in
accordance with the Special Rule under the ESA. The 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.

     The 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 conditions 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 finding
for sport hunting of African elephants in Zimbabwe.
Memorandum, Enhancement Finding for African Elephants
Taken as Sport-hunted Trophies in Zimbabwe, U.S. Fish and
                                8
Wildlife Service (July 2, 1997), reproduced at Joint Appendix
(“J.A.”) 373–76. The Service 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 the
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 importation 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. The 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 Zimbabwean 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 Zimbabwean officials since 2007. Lacking current
data from the Zimbabwean government regarding its
conservation programs and the status of the elephant
population, the Service determined that it was not possible “to
                               9
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
Zimbabwean 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 Zimbabwean
government, safari outfitters, including Safari Club, and
conservation and hunting associations. Based on the submitted
information, the Service issued a final negative enhancement
finding on July 17, 2014. Memorandum, Enhancement 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 After 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. at
                              10
524–28. Unable to make a positive enhancement 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 Club Int’l v. Jewell, 47 F. Supp. 3d 29, 31
(D.D.C. 2014). The District Court granted the federal
defendants’ motion to dismiss the Tanzanian claims on the
grounds that the plaintiffs had not exhausted their
administrative remedies, since no member of the Safari 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 to
                               11
amend their complaint to add claims challenging the July 2014
enhancement finding. Id. at 205–06. The Court of Appeals
reversed the dismissal of the Tanzanian 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 finding 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 elephants
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 principal 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 standard greater than “enhancement.”
Second, they argued that by resting on the absence of evidence
that sport hunting enhances the survival of the African elephant
in Zimbabwe, the findings violated the presumption of legality
established in section 9(c)(2) of the ESA. Third, they claimed
that the removal of the enhancement-finding requirement from
the Convention in 1994 required the Service to initiate rule
                               12
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-making 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 capricious, id. at 73–81; (2) it was reasonable for
the Service “to interpret the Special Rule as rebutting [section
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 when 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 appealed the denial of
their motion for summary judgment and the entry of judgment
for Appellees.

                        II. ANALYSIS

   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 the
                                13
instant one, in which the District Court reviewed an agency
action under the APA, we review the administrative action
directly, according no particular 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 otherwise 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); see
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
applying the arbitrary and capricious standard, we consider
whether the agency “has relied on factors which 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. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). The 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 quotation 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.’” City 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 effect 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. Mead 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 substantial 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 erroneous 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 ban
                               15
elephant imports. As noted above, the Special Rule forbids the
importation of sport-hunted 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 the 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 the Service erred because it
applied a standard that is more stringent than the “enhance”
standard in the Service’s regulation.

    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 Appellants’
view, it does not matter whether the benefits of sport hunting
are outweighed by its risks to the threatened species. Thus,
according to Appellants, the Service was obliged to make a
positive enhancement finding once it found that there 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
will “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 that
                               16
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 amounts 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’ survival 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 things, “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 participation 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 isolation 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. at
                               17
42,526; 79 Fed. Reg. at 44,460. In these 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 easily 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. Appellants’ Claim that the Enhancement Findings
      Are 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 impermissible construction of the ESA because
section 9(c)(2) of the act provides that “[a]ny importation into
the United States” of non-endangered, 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 [the
                                 18
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 section 9(c)(2) applies 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 statutory presumption
required the Service to authorize importation. We find no merit
in this claim. We also find that the 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 FED. R. EVID. 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 Arg. Recording 1:52–2:09 (“We[, the
Appellants,] are not arguing . . . that section 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 not satisfied. Therefore, the
section 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 into 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). No 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 Appellants’ argument is that it
mischaracterizes the Special 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 Rule 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 extension, 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
administrative 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 no way constrains the Service’s section
4(d) authority to condition the importation of threatened
Appendix II species on an affirmative enhancement finding.
Under section 4(d) of the ESA, the Service “shall issue such
regulations as [it] deems necessary and advisable to provide for
the conservation 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 threatened species under section 4(d), see 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 Service has the
                               20
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
section 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 content
of the conditions.

      In fact, Appellants have conceded that the Special Rule’s
enhancement condition is consistent with section 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 importation of
African elephant trophies. See Oral Arg. Recording 1:30–2:16
(“We are not arguing that section 9(c)(2) prevents the Service
from enacting a special rule under Section 4(d). We are not
arguing that [section] 9(c)(2) overrides any such special rule.
We are not arguing that section 9(c)(2) conflicts with section
4(d) of the ESA. And we are not arguing . . . that section 9(c)(2)
. . . preempts section 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 restrict
the importation of African elephant trophies. The Service has
chosen to exercise this authority by requiring an affirmative
demonstration that sport hunting enhances the survival of the
African elephant 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 be 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 the Special Rule in 1992). The
Convention was amended to remove this requirement in 1994.
However, the 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 (explaining
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 rulemaking 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 to
                                22
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
implement the Convention. However, another purpose was to
promote the conservation of African elephants by authorizing
only those imports of sport-hunted trophies that enhance
elephants’ survival. In the preamble to the Special Rule, the
Service stated that sport 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 sport 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
program “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 reconsider 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, 819 (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, Appellants did not petition the Service to
pursue rule making, so there is no denial of any such petition
for the court to 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 reasoned explanation for its action.”
Id. at 515. As 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 enforce 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 meant to
raise a facial challenge to the Special Rule, the challenge comes
too late. The window to challenge the validity of the regulation
                               24
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 Engage 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 the 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 comply 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
informal 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 Fla. v. Veneman, 289 F.3d 89, 95 (D.C. Cir. 2002), to mean
                               26
“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 hand, 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 Londoner 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 agency’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 applications
                               27
of more general principles rather than case-specific 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 opinion); 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 order 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. Florida East Coast Railway 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 across 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, the 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
     The 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 Zimbabwe 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.”). The findings did not adjudicate any dispute between
specific parties.

     Furthermore, the Service’s ban on imports was 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 Zimbabwe 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 appealed 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 banned the importation of sport-hunted elephants
from Zimbabwe going forward, throughout the rest of the
                              29
relevant year. Those findings were not retroactive because their
issuance resulted in no immediate legal consequences for any
specific parties.

     This is not a case in which the agency made its findings in
the course of denying an application for an import permit, as
was 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 findings 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 elephants, 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 findings
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 CARBIO 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, without
                               30
any application before it, that bound the agency to approving
all future certification applications submitted from Argentinian
biofuel producers.

     Furthermore, the fact that the negative enhancement
findings applied, and did not change, the enhancement standard
established in the Special 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 enhancement
requirement by issuing negative enhancement determinations
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 imposition 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.
The decision is therefore inapposite.

     Finally, the 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. Therefore, the dispute over
the April finding is not moot.
                               31
    3. Harmless Error
     Finally, the Service argues that any error resulting 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 failure 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, before implementing
the program, the government met with interested persons to
hear their concerns about the program. Id. at 92. Before
announcing the program, “Department employees had
approximately a dozen contacts with sugar industry
representatives regarding the possibility of 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
interested 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 explained:

    Here the government would have us virtually repeal
    section 553’s requirements: if the government could
                                32
     skip those procedures, engage in informal
     consultation, and then be protected from judicial
     review unless a petitioner could show a new
     argument—not 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 the 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 interim 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 Fed. 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 initiation, 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-
hunted 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 harmless.

                      III. CONCLUSION
     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.
