Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 54579 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic 

range 

Vertebrate 

population 

where 

endangered 

or 

threatened 

Status When listed Critical habitat Special rules 

Common name Scientific name 

*******

Amphibians 

*******

Hellbender, Ozark Cryptobranchus 

alleganiensis 

bishopi 

AR, MO Entire E NA NA 

*******

Dated: August 19, 2010. 

Wendi Weber, 

Acting Deputy Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2010–22249 Filed 9–7–10; 8:45 am] 

BILLING CODE 4310–55–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 23 

[Docket No. FWS–R9–IA–2009–0033] 

[96300–1671–0000–R4] 

RIN 1018–AW93 

Inclusion of the Hellbender, Including 

the Eastern Hellbender and the Ozark 

Hellbender, in Appendix III of the 

Convention on International Trade in 

Endangered Species of Wild Fauna 

and Flora (CITES) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

include the hellbender (Cryptobranchus 

alleganiensis), a large aquatic 

salamander, including its two 

subspecies, the eastern hellbender 

(Cryptobranchus alleganiensis 

alleganiensis) and the Ozark hellbender 

(Cryptobranchus alleganiensis bishopi), 

in Appendix III of the Convention on 

International Trade in Endangered 

Species of Wild Fauna and Flora (CITES 

or Convention), including live and dead 

whole specimens, and all readily 

recognizable parts, products, and 

derivatives. Listing hellbenders in 

Appendix III of CITES is necessary to 

allow us to adequately monitor 

international trade in the taxon; to 

determine whether exports are 

occurring legally, with respect to State 

law; and to determine whether further 

measures under CITES or other laws are 

required to conserve this species and its 

subspecies. 

DATES: To ensure that we are able to 

consider your comment on this 

proposed rulemaking action, you must 

send it by November 8, 2010. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on Docket No. FWS–R9–IA–2009–0033. 

• U.S. mail or hand–delivery: Public 

Comments Processing, Attn: FWS–R9– 

IA–2009–0033; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: 

Clifton A. Horton, Division of 

Management Authority, U.S. Fish and 

Wildlife Service, 4401 N. Fairfax Drive, 

Room 212, Arlington, VA 22203; 

telephone 703–358–1908; facsimile 

703–358–2298. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible. 

Therefore, we request comments or 

suggestions on this proposed rule. We 

particularly seek comments concerning: 

(1) Biological, trade, or other relevant 

data concerning any threats (or lack 

thereof) to this species (including 

subspecies), and regulations that may be 

addressing those threats. 

(2) Additional information concerning 

the range, distribution, and population 

size of this species (including 

subspecies). 

(3) Any information on the biological 

or ecological requirements of this 

species (including subspecies). 

(4) Any information regarding legal or 

illegal collection of or trade in this 

species (including subspecies). 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in the 

ADDRESSES section. We will not 

consider comments sent by e-mail or fax 

or to an address not listed in the 

ADDRESSES section. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

comment—including any personal 

identifying information—will be posted 

on the website. If you submit a 

hardcopy comment that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy comments on 

http://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 


srobinson on DSKHWCL6B1PROD with PROPOSALS
54580 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment, between 8 a.m. and 4 

p.m., Monday through Friday, except 

Federal holidays, at the U.S. Fish and 

Wildlife Service, Division of 

Management Authority, 4401 N. Fairfax 

Drive, Room 212, Arlington, VA 22203; 

telephone 703–358–1908. 

Background 

CITES, an international treaty, 

regulates the import, export, re-export, 

and introduction from the sea of certain 

animal and plant species. CITES was 

negotiated in 1973 in Washington, DC, 

at a conference attended by delegations 

from 80 countries. The United States 

ratified the Convention on September 

13, 1973, and it entered into force on 

July 1, 1975, after it had been ratified by 

the required 10 countries. Currently 175 

countries have ratified, accepted, 

approved, or acceded to CITES; these 

countries are known as Parties. 

The text of the Convention and the 

official list of all species included in its 

three Appendices are available from the 

CITES Secretariat’s website at http:// 

www.cites.org or upon request from the 

Division of Management Authority at 

the address provided in FOR FURTHER

INFORMATION CONTACT above. 

Section 8A of the Endangered Species 

Act of 1973, as amended (16 U.S.C. 1531 

et seq.), designates the Secretary of the 

Interior as the U.S. Management 

Authority and U.S. Scientific Authority 

for CITES. These authorities have been 

delegated to the Fish and Wildlife 

Service. The original U.S. regulations 

implementing CITES took effect on May 

23, 1977 (42 FR 10465, February 22, 

1977), after the first meeting of the 

Conference of the Parties (CoP) was 

held. The CoP meets every 2 to 3 years 

to vote on proposed resolutions and 

decisions that interpret and implement 

the text of the Convention and on 

amendments to the list of species in the 

CITES Appendices. The current U.S. 

CITES regulations (50 CFR part 23) took 

effect on September 24, 2007. 

CITES Appendices 

Species covered by the Convention 

are listed in one of three Appendices. 

Appendix I includes species threatened 

with extinction that are or may be 

affected by international trade, and are 

generally prohibited from commercial 

trade. Appendix II includes species that, 

although not necessarily threatened 

with extinction now, may become so 

unless the trade is strictly controlled. It 

also lists species that CITES must 

regulate so that trade in other listed 

species may be brought under effective 

control (e.g., because of similarity of 

appearance between listed species and 

other species). Appendix III includes 

native species, identified by any Party, 

that are regulated to prevent or restrict 

exploitation, where the Party requests 

the help of other Parties to monitor and 

control the trade of the species. 

To include a species in or remove a 

species from Appendices I or II, a Party 

must propose an amendment to the 

Appendices for consideration at a 

meeting of the CoP. The adoption of 

such a proposal requires approval of at 

least two-thirds of the Parties present 

and voting. However, a Party may add 

a native species to Appendix III 

independently, without the vote of other 

Parties, under Articles II and XVI of the 

Convention. Likewise, if the status of an 

Appendix-III species improves or new 

information shows that it no longer 

needs to be listed, the listing country 

can remove the species from Appendix 

III without consulting the other CITES 

Parties. 

Inclusion of native U.S. species in 

Appendix III provides the following 

benefits: 

(1) An Appendix-III listing ensures 

the assistance of the other CITES 

Parties, through the implementation of 

CITES permitting requirements in 

controlling international trade in the 

species. 

(2) Listing U.S. native species in 

Appendix III would, in appropriate 

cases, enhance the enforcement of State 

and Federal conservation measures 

enacted for the species by regulating 

international trade in the species. 

Shipments containing CITES-listed 

species receive greater scrutiny from 

border officials in both the exporting 

and importing countries. When a 

shipment containing a non-listed 

species is exported from the United 

States, it is a lower inspection priority 

for the Service than a shipment 

containing a CITES-listed species. 

Furthermore, many foreign countries 

have limited legal authority and 

resources to inspect shipments of nonCITES-listed wildlife. Appendix-III 

listings for U.S. species will give these 

importing countries the legal basis to 

inspect such shipments, and deal with 

CITES and national violations when 

they detect them. 

(3) Another practical outcome of 

listing a species in Appendix III is that 

records are kept and international trade 

in the species is monitored. We will 

gain and share new information on such 

trade with State fish and wildlife 

agencies, and others who have 

jurisdiction over resident populations of 

the Appendix-III species. They will then 

be able to better determine the impact 

of the trade on the species and the 

effectiveness of existing State 

management activities, regulations, and 

cooperative efforts. International trade 

data and other relevant information 

gathered as a result of an Appendix-III 

listing will help policymakers 

determine whether we should propose 

the species for inclusion in Appendix II, 

remove it from Appendix III, or retain 

it in Appendix III. 

(4) When any live CITES-listed 

species (including an Appendix-III 

species) is exported (or imported), it 

must be packed and shipped according 

to the International Air Transport 

Association (IATA) Live Animals 

Regulations to reduce the risk of injury 

and cruel treatment. This requirement 

helps to ensure the survival of the 

animals while they are in transport. 

Criteria for Listing a Native U.S. Species 

in Appendix III 

Article II, paragraph 3, of CITES states 

that ‘‘Appendix III shall include all 

species which any Party identifies as 

being subject to regulation within its 

jurisdiction for the purpose of 

preventing or restricting exploitation, 

and as needing the cooperation of other 

parties in the control of trade.’’ Article 

XVI, paragraph 1, of the Convention 

states further that ‘‘Any Party may at any 

time submit to the Secretariat a list of 

species which it identifies as being 

subject to regulation within its 

jurisdiction for the purpose mentioned 

in paragraph 3 of Article II. Appendix 

III shall include the names of the Parties 

submitting the species for inclusion 

therein, the scientific names of the 

species so submitted, and any parts or 

derivatives of the animals or plants 

concerned that are specified in relation 

to the species for the purposes of 

subparagraph (b) of Article I.’’ 

At the ninth meeting of the 

Conference of the Parties to CITES 

(CoP9), held in the United States in 

1994, the Parties adopted Resolution 

Conf. 9.25 (amended at the 10th and 14th

meetings of the CoP), which provides 

further guidance to Parties for the listing 

of their native species in Appendix III. 

The Resolution, which is the basis for 

our criteria for listing species in 

Appendix III provided in our 

regulations at 50 CFR 23.90(c), 

recommends that a Party: 

(a) Ensure that (i) The species is 

native to its country; (ii) Its national 

regulations are adequate to prevent or 

restrict exploitation and to control trade, 

for the conservation of the species, and 

include penalties for illegal taking, trade 

or possession and provisions for 

confiscation; and (iii) Its national 

enforcement measures are adequate to 

implement these regulations; 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 54581 

(b) Determine that, notwithstanding 

these regulations and measures, there 

are indications that the cooperation of 

the Parties is needed to control illegal 

trade; and 

(c) Inform the Management 

Authorities of other range States, the 

known major importing countries, the 

Secretariat and the Animals Committee 

or the Plants Committee that it is 

considering the inclusion of the species 

in Appendix III and seek their opinion 

on the potential effects of such 

inclusion. 

Therefore, we have used the following 

criteria in deciding to list U.S. species 

in Appendix III as outlined in 50 CFR 

23.90(c): 

(1) The species must be native to the 

country listing the species. 

(2) The species must be protected 

under that country’s laws or regulations 

to prevent or restrict exploitation and 

control trade, and the laws or 

regulations are being implemented. 

(3) The species is in international 

trade, and there are indications that the 

cooperation of other Parties would help 

to control illegal trade. 

(4) The listing Party must inform the 

Management Authorities of other range 

countries, the known major importing 

countries, the Secretariat, and the 

Animals Committee or the Plants 

Committee that it is considering the 

listing and seek their opinions on the 

potential effects of the listing. 

CITES does not allow the exclusion of 

particular parts or products for any 

species listed in Appendix I or the 

exclusion of parts or products of animal 

species in Appendix II. However, 

Article XVI of the Convention allows for 

either all specimens of a species or only 

certain identifiable parts or products of 

a specimen (in addition to whole 

specimens) to be listed in Appendix III. 

For example, the current listing in 

CITES Appendix III of Cedrela odorata 

(Spanish cedar) by Colombia, 

Guatemala, and Peru includes only logs, 

sawn wood, and veneer sheets. 

Therefore, if the criteria listed above are 

met, we could list any designated parts 

or products of a species in Appendix III, 

if we inform the CITES Secretariat of the 

limited listing. 

Submission of Information to the CITES 

Secretariat 

For this listing, consultation with 

other range countries is not applicable 

since hellbenders are endemic to the 

United States. After reviewing the 

information submitted in response to 

this proposal, we will make a final 

decision on whether to include this 

species in CITES Appendix III. We will 

publish our decision in the Federal 

Register. If we decide to list the species 

in CITES Appendix III, we will notify 

the CITES Secretariat. The listing will 

take effect 90 days after the CITES 

Secretariat informs the CITES Parties of 

the listing. 

Change in Status of Appendix-III 

Species Based on New Information 

We monitor the trade of all U.S. 

Appendix-III species. If either of the 

following occurs, we will consider 

removing the species from Appendix III: 

(1) We determine that international 

trade in the species is very limited (as 

a general guide, fewer than 5 shipments 

per year or fewer than 100 individual 

animals or plants); and (2) we determine 

that trade (legal and illegal) in the 

species (either internationally or in 

interstate commerce) is not a concern. If, 

after monitoring the trade of any U.S. 

Appendix-III species and evaluating its 

status, we determine that the species 

meets the CITES criteria for listing in 

Appendix I or II, based on the criteria 

contained in 50 CFR 23.89, we will 

consider whether to propose the species 

for inclusion in Appendix I or II. 

Practical Effects of Listing a Native U.S. 

Species in Appendix III 

Permits and other requirements: The 

export of an Appendix-III species listed 

by the United States requires an export 

permit issued by the Service’s Division 

of Management Authority (DMA). DMA 

will issue a permit only if the applicant 

obtained the specimen legally, without 

violating any applicable U.S. laws, 

including relevant State wildlife laws 

and regulations, and the live specimen 

is packed and shipped according to the 

IATA Live Animals Regulations to 

reduce the risk of injury and cruel 

treatment. DMA, in determining if the 

applicant legally obtained the specimen, 

is required to consult relevant State and 

Federal agencies. Since the conservation 

and management of these species is 

primarily under the jurisdiction of State 

agencies, we will consult those agencies 

to ensure that specimens destined for 

export were obtained in compliance 

with State laws and regulations. Unlike 

species listed in Appendices I and II, no 

scientific non-detriment finding is 

required by the Service’s Division of 

Scientific Authority (DSA) for export of 

an Appendix-III species. However, DSA 

will monitor and evaluate the trade, to 

decide if there is a conservation concern 

that would require any further Federal 

action. With a few exceptions, any 

shipment containing wildlife must be 

declared to a Service Wildlife Inspector 

upon export and must comply with all 

applicable regulations. 

Process, Findings, and Fees: To apply 

for a CITES permit, an applicant is 

required to furnish to DMA a completed 

CITES export permit application (with 

check or money order to cover the cost 

of processing the application). You may 

obtain information about CITES permits 

from our website at http://www.fws.gov/ 

permits/ImportExport/ 

ImportExport.shtml or from DMA (see 

FOR FURTHER INFORMATION CONTACT). We 

will review the application to decide if 

the export meets the criteria in 50 CFR 

23.60. 

In addition, live animals must be 

shipped to reduce the risk of injury, 

damage to health, or cruel treatment. We 

carry out this CITES requirement by 

stating clearly on all CITES permits that 

shipments must comply with the IATA 

Live Animals Regulations. The Service’s 

Office of Law Enforcement (OLE) is 

authorized to inspect shipments of 

CITES-listed species during export to 

ensure that they comply with these 

regulations. Additional information on 

permit requirements is available from 

DMA (see FOR FURTHER INFORMATION

CONTACT); additional information on 

declaration of shipments, inspection, 

and clearance of shipments is available 

upon request from the OLE: 

U.S. Fish and Wildlife Service, Office 

of Law Enforcement, 4401 North Fairfax 

Drive, MS–LE–3000, Arlington, VA 

22203; telephone 703–358–1949; 

facsimile 703–358–2271. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

Federal Actions 

In a series of five notices published in 

the Federal Register between 1982 and 

1994 (47 FR 58454, 50 FR 37958, 54 FR 

554, 56 FR 58804, and 59 FR 58982), we 

identified the hellbender 

(Cryptobranchus alleganiensis) as a 

taxon native to the United States with 

a listing candidate status under the 

Endangered Species Act of category 2. 

At that time, taxa included in category 

2 were those taxa for which we had 

information indicating that it was 

possibly appropriate to list such taxa as 

threatened or endangered, but for which 

persuasive data was not sufficiently 

available to support proposed rules. 

We first identified the Ozark 

hellbender (Cryptobranchus 

alleganiensis bishopi) as a candidate 

species in a notice of review published 

in the Federal Register on October 30, 

2001 (66 FR 54808). We gave the Ozark 

hellbender a listing priority number 

(LPN) of 6 due to nonimminent threats 

of a high magnitude. 

On May 11, 2004, we received a 

petition dated May 4, 2004, from the 


srobinson on DSKHWCL6B1PROD with PROPOSALS
54582 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

Center for Biological Diversity to list 

225 candidate species, including the 

Ozark hellbender. We received another 

petition on September 1, 2004 (dated 

August 24, 2004), from The Missouri 

Coalition for the Environment and 

Webster Groves Nature Study Society 

requesting emergency listing of the 

Ozark hellbender. Based on information 

presented in that petition, we 

determined that emergency listing was 

not warranted at that time. We notified 

the petitioners of this determination in 

November 2004. 

In a May 11, 2005, notice published 

in the Federal Register (70 FR 24870), 

we changed the LPN from 6 to 3 because 

of the increased immediacy of threats 

since the Ozark hellbender was elevated 

to candidate status in 2001. The threat 

of particular concern was the annual 

increases in recreational pressures on 

rivers the Ozark hellbender inhabits. 

Elsewhere in today’s Federal Register, 

the Service proposes to list the Ozark 

hellbender as federally endangered 

under the Endangered Species Act of 

1973, as amended. 

Summary of Threats 

The destruction and modification of 

habitat, siltation, construction of dams, 

water quality, disease, lack of genetic 

variation, predation by nonnative fish, 

climate change, and the inadequacy of 

existing regulatory mechanisms have 

been implicated as contributing to the 

decline of hellbenders (Mayasich et al. 

2003, pp. 18–24 and Briggler et al. 2007, 

pp. 16–44). Additionally, overcollecting 

has been considered a serious threat in 

some areas; a decline in hellbender 

populations in the early 1990s was 

apparently due to collecting (Stuart et 

al. 2008, p. 637). Moreover, it has been 

suggested that scientific collecting may 

have negatively impacted hellbender 

populations (Mayasich et al. 2003, p. 

20). 

Information on the legal and illegal 

take of hellbenders and the number of 

hellbenders that enter into the pet trade 

is limited. However, between 1969 and 

1989, the documented harvest of 558 

Ozark hellbenders from the North Fork 

of the White River (NFWR) in Missouri 

comprised 49.6 percent for scientific 

study, 45.9 percent for the pet trade, 1.8 

percent for educational programs, and 

2.7 percent that were unattributed 

(Nickerson and Briggler 2007, p. 208). 

Approximately 48.5 percent of this 

documented take (or 271) of 558 Ozark 

hellbenders was illegal and was a 

substantial factor in the decline of Ozark 

hellbender populations in the NFWR 

(Nickerson and Briggler 2007, p. 214). 

Likewise, information on the number of 

hellbenders that enter international 

trade is also limited. We have recently 

documented hellbenders in 

international trade. Also, since 

hellbenders are not currently a CITESlisted species, it is possible that past 

hellbender shipments have been 

recorded generically in the Service’s 

Declaration System as non-CITES 

amphibians rather than as hellbenders. 

In addition, at the 2005 Hellbender 

Symposium (June 19–22, 2005, 

Lakeview, Arkansas), it was reported 

that U.S.-origin hellbenders were found 

for sale in Japanese pet stores, which is 

likely the largest overseas market for 

this species (Briggler, pers. comm. with 

Okada, 2005). 

For more information on the threats 

contributing to the decline of 

hellbenders, see our proposal to list the 

Ozark hellbender as federally 

endangered under the Endangered 

Species Act of 1973, as amended, 

elsewhere in today’s Federal Register. 

Species and Subspecies for Listing in 

Appendix III 

We propose to list the hellbender 

(Cryptobranchus alleganiensis), 

including its two subspecies, the eastern 

hellbender (Cryptobranchus 

alleganiensis alleganiensis) and the 

Ozark hellbender (Cryptobranchus 

alleganiensis bishopi), in CITES 

Appendix III, including live and dead 

whole specimens, and all readily 

recognizable parts, products, and 

derivatives. This proposed rule, if 

adopted, would apply to all living and 

dead hellbenders and their readily 

recognizable parts, products, and 

derivatives. The term readily 

recognizable is defined in our 

regulations at 50 CFR 23.5 and means 

any specimen that appears from a 

visual, physical, scientific, or forensic 

examination or test; an accompanying 

document, packaging, mark, or label; or 

any other circumstances to be a part, 

product, or derivative of any CITES 

wildlife or plant, unless such part, 

product, or derivative is specifically 

exempt from the provisions of CITES or 

50 CFR part 23. 

Hellbender 

The hellbender is a large, aquatic 

salamander attaining a maximum length 

of 29 inches (in) (74 centimeters (cm)) 

(Petranka 1998, p. 140). Native to cool, 

fast-flowing streams of the central and 

eastern United States (Briggler et al. 

2007, p. 8), the hellbender usually 

avoids water warmer than 68 

°Fahrenheit (F) (20 °Celsius (C)) (Stuart 

et al. 2008, p. 636). The rarity of specific 

habitats that hellbenders require, 

especially at low elevations, may 

severely limit hellbender migration 

between rivers and render the range of 

hellbenders highly fragmented (Sabatino 

and Routman 2008, p. 7). Successful 

migration to and colonization of new 

locations by hellbenders may only occur 

when geologic or climatic changes result 

in the formation of migratory paths 

suitable to hellbenders (Sabatino and 

Routman 2008, p. 8). Populations of the 

once-common hellbender have declined 

by 77 percent since the 1970s (Briggler 

et al. 2007, p. 8). Population declines 

are likely due to a combination of 

factors such as diminished water 

quality, human-caused siltation, 

collection, and persecution (Briggler et 

al. 2007, p. 8). Crayfish and small fish 

are the dietary mainstay of hellbenders 

(Petranka 1998, p. 144). 

Although two hellbender subspecies 

are recognized, the eastern hellbender 

and the Ozark hellbender, the 

taxonomic differentiation between 

hellbender subspecies is not well agreed 

upon by experts, and discussion 

continues on whether the eastern 

hellbender and the Ozark hellbender are 

distinct species or subspecies (Mayasich 

et al. 2003, p. 2). Irrespective of the 

taxonomic differentiation of 

hellbenders, all currently recognized 

hellbender subspecies of 

Cryptobranchus alleganiensis would be 

included in the CITES Appendix III 

listing. 

Eastern Hellbender and Ozark 

Hellbender 

Eastern and Ozark hellbenders are 

very similar in habitat selection, 

movement, and reproductive biology 

(Nickerson and Mays 1973a, pp. 44-55). 

Although some differences in color 

pattern exist, the eastern subspecies is 

described as having dorsal spotting and 

a uniformly colored chin and the Ozark 

subspecies is described as having dark 

dorsal blotching and pronounced chin 

mottling (Mayasich et al. 2003, p. 2). 

Hellbender subspecies are most easily 

identified by geographic range 

(Mayasich et al. 2003, p. 2). The Ozark 

hellbender inhabits streams that drain 

south out of the Ozark Plateau in the 

highlands of Missouri and Arkansas 

(Sabatino and Routman 2008, p. 2). All 

other populations of hellbenders, 

including those inhabiting streams 

draining northward from the Ozarks, 

belong to the eastern hellbender 

subspecies (Sabatino and Routman 

2008, p. 2). 

Range and Distribution 

The eastern hellbender ranges from 

southern and western New York 

southward to northern Georgia, 

Alabama, and Mississippi and westward 

to central Missouri (Nickerson and Mays 


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Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 54583 

1973a, p. 3). It is estimated that there are 

over 300 metapopulations across the 

eastern United States, containing 

approximately 350,000 eastern 

hellbenders over one year of age 

(Briggler et al. 2007, p. 85). 

Ozark hellbenders are endemic to the 

White River drainage in northern 

Arkansas and southern Missouri 

(Johnson 2000, pp. 40-41), historically 

occurring in portions of the Spring, 

White, Black, Eleven Point, and Current 

Rivers and their tributaries (North Fork 

White River, Bryant Creek, and Jacks 

Fork) (LaClaire 1993, p. 3). It is 

estimated that there are 4 

metapopulations of Ozark hellbenders, 

containing approximately 600 Ozark 

hellbenders over one year of age 

(Briggler et al. 2007, p. 83). 

Conservation Status 

The hellbender is considered ‘‘Near 

Threatened’’ by the International Union 

for Conservation of Nature (IUCN) 

because the species is probably in 

significant decline and because of 

widespread habitat loss throughout 

much of its range. The CITES Technical 

Work Group of the Association of Fish 

and Wildlife Agencies has concluded 

that including hellbenders in CITES 

Appendix III is warranted in order to 

help ensure conservation of the species 

in the wild and to assist State agencies 

in regulating harvest and trade. 

Eastern hellbenders are protected to 

varying degrees, ranging from ‘‘Not 

Protected’’ to ‘‘Endangered,’’ by State 

laws within the United States. Although 

there are stable populations in some 

areas, the eastern hellbender is 

declining throughout its range, which 

includes portions of the following 16 

States: Alabama, Georgia, Illinois, 

Indiana, Kentucky, Maryland, 

Mississippi, Missouri, New York, North 

Carolina, Ohio, Pennsylvania, South 

Carolina, Tennessee, Virginia, and West 

Virginia. 

One State (North Carolina) indicates 

the ecological status of eastern 

hellbenders in that State as stable. North 

Carolina lists the eastern hellbender as 

a ‘‘Special Concern Species’’ and take is 

regulated and may occur under certain 

provisions. 

Five States (Maryland, Missouri, New 

York, Pennsylvania, and Virginia) 

indicate the ecological status of eastern 

hellbenders in those States as declining 

or seriously declining. Maryland and 

Missouri list the eastern hellbender as 

‘‘Endangered’’ and take is generally 

prohibited. New York lists the eastern 

hellbender as ‘‘Special Concern’’ and as 

a small game species with no open 

season. In Pennsylvania, the eastern 

hellbender is classified as a protected 

salamander with no open season. 

Virginia lists the eastern hellbender as 

‘‘Special Concern’’ and adult eastern 

hellbenders can not be taken for private 

use. However, in Virginia juvenile 

eastern hellbenders less than six inches 

in total length may be used as fish bait. 

One State (Georgia) indicates the 

ecological status of eastern hellbenders 

in that State as rare, lists the species as 

‘‘Rare’’ and prohibits take. One State 

(Illinois) indicates the ecological status 

of eastern hellbenders in that State as 

possibly extinct, lists the species as 

‘‘Endangered’’ and generally prohibits 

take. 

Six States (Alabama, Mississippi, 

Ohio, South Carolina, Tennessee, and 

West Virginia) indicate that the 

ecological status of eastern hellbenders 

in those States is not known. Alabama 

and Mississippi classify the eastern 

hellbender as a non-game species; 

Alabama generally prohibits take while 

regulated take is permitted in 

Mississippi. Ohio lists the eastern 

hellbender as ‘‘Endangered’’ and take is 

generally prohibited. In South Carolina, 

the eastern hellbender is not protected 

and take is not regulated. In Tennessee, 

the eastern hellbender is protected as a 

non-game native species in need of 

management and take is prohibited. The 

eastern hellbender is not protected in 

West Virginia and regulated take for 

commercial purposes is allowed. We 

have not received information on the 

ecological status of eastern hellbenders 

in two States (Indiana and Kentucky). 

Indiana lists the species as 

‘‘Endangered’’ and prohibits take. 

Kentucky lists the eastern hellbender as 

‘‘Special Concern’’ and the species can 

not be taken for commercial purposes. 

However, in Kentucky eastern 

hellbenders may be collected from 

public waters for use as fish bait for 

personal use. 

The Ozark hellbender only occurs in 

Arkansas and Missouri. The Ozark 

hellbender is listed as ‘‘Protected’’ by 

Arkansas and ‘‘Endangered’’ by Missouri 

and take is prohibited in both States. 

Despite these designations, Arkansas 

and Missouri indicate that the Ozark 

hellbender in those States is in serious 

decline. Evidence indicates that no 

populations of Ozark hellbenders 

appear to be stable (Wheeler et al. 2003, 

pp. 153 and 155). As stated earlier, 

elsewhere in today’s Federal Register, 

the Service proposes to list the Ozark 

hellbender as federally endangered 

under the Endangered Species Act of 

1973, as amended. 

Under section 3372(a)(1) of the Lacey 

Act Amendments of 1981 (16 U.S.C. 

3371-3378), it is unlawful to import, 

export, transport, sell, receive, acquire, 

or purchase any wildlife taken, 

possessed, transported, or sold in 

violation of any law, treaty, or 

regulation of the United States. This 

prohibition of the Lacey Act would 

apply in instances where hellbenders 

were unlawfully collected from Federal 

lands, such as those Federal lands 

within the range of hellbenders that are 

owned and managed by the U.S. Forest 

Service or the National Park Service. 

It is unlawful under section 

3372(a)(2)(A) of the Lacey Act to import, 

export, transport, sell, receive, acquire, 

or purchase in interstate or foreign 

commerce any wildlife taken, 

possessed, transported, or sold in 

violation of any law or regulation of any 

State. Because many State laws and 

regulations prohibit or strictly regulate 

the take of hellbenders, certain acts with 

hellbenders acquired unlawfully under 

State law would result in a violation of 

the Lacey Act Amendments of 1981 and 

thus provide for federal enforcement 

due to a violation of State law. 

Decision to Propose to List All 

Hellbenders in CITES Appendix III 

Based on the recommendations 

contained in Resolution Conf. 9.25 (Rev. 

CoP14) and the listing criteria provided 

in our regulations at 50 CFR 23.90, the 

hellbender qualifies for listing in CITES 

Appendix III. Despite the protective 

status for hellbenders in many States, 

declines have been evident throughout 

the range of the hellbender. Existing 

State laws have not been completely 

successful in preventing the 

unauthorized collection and trade of 

hellbenders. Listing hellbenders in 

Appendix III is necessary to allow us to 

adequately monitor international trade 

in the taxa; to determine whether 

exports are occurring legally, with 

respect to State law; and to determine 

whether further measures under CITES 

or other laws are required to conserve 

this species and its subspecies. An 

Appendix-III listing would lend 

additional support to State wildlife 

agencies in their efforts to regulate and 

manage hellbenders, improve data 

gathering to increase our knowledge of 

trade in hellbenders, and strengthen 

State and Federal wildlife enforcement 

activities to prevent poaching and 

illegal trade. Furthermore, listing all 

hellbenders in Appendix III would 

enlist the assistance of other Parties in 

our efforts to monitor and control trade 

in this species and its subspecies. 

Effect of Proposal to List Hellbender in 

CITES Appendix III 

Our regulations at 50 CFR 23.90 

require us to publish a proposed rule 

and a final rule for a CITES AppendixVerDate Mar<15>2010 16:36 Sep 07, 2010 Jkt 220001 PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 E:\FR\FM\08SEP1.SGM 08SEP1

srobinson on DSKHWCL6B1PROD with PROPOSALS
54584 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 

III listing even though, if a proposed 

rule is adopted, the final rule would not 

result in any changes to the Code of 

Federal Regulations. Instead, this 

proposed rule, if finalized, would result 

in DMA notifying the CITES Secretariat 

to amend Appendix III by including the 

hellbender, including its two 

subspecies, the eastern hellbender and 

the Ozark hellbender, in Appendix III of 

CITES for the United States. After 

analysis of the comments on the 

proposed rule, we will publish our final 

decision in the Federal Register. If this 

proposed rule is finalized, the listing 

would take effect 90 days after the 

CITES Secretariat informs the Parties of 

the listing. If we adopt a final rule, we 

will contact the Secretariat prior to 

publishing the rule to clarify the exact 

time period required by the Secretariat 

to inform the Parties of the listing. 

Required Determinations 

Regulatory Planning and Review 

(Executive Order 12866) 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant under Executive Order 

12866 (E.O. 12866). OMB bases its 

determination upon the following four 

criteria: 

(a) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(b) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(c) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(d) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 802(2)), whenever 

an agency is required to publish a notice 

of rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effect of the rule on small entities (i.e., 

small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The Department of the Interior certifies 

that this action would not have a 

significant effect on a substantial 

number of small entities for the reasons 

discussed below. 

This proposed rule establishes the 

means to monitor the international trade 

in a species native to the United States 

and does not impose any new or 

changed restriction on the trade of 

legally acquired specimens. Based on 

current exports of hellbenders, we 

estimate that the costs to implement this 

rule will be less than $2,000,000 

annually due to the costs associated 

with obtaining permits. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. This proposed 

rule: 

(a) Would not have an annual effect 

on the economy of $100 million or 

more. 

(b) Would not cause a major increase 

in costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

(c) Would not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: (a) This rule would not 

produce a Federal mandate. In general, 

a Federal mandate is a provision in 

legislation, statute, or regulation that 

would impose an enforceable duty upon 

State, local, or tribal governments, or the 

private sector, and includes both 

‘‘Federal intergovernmental mandates’’ 

and ‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal 

governments,’’ with two exceptions. It 

excludes ‘‘a condition of federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance; or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ This 

proposed rule would not impose a 

legally binding duty on non-Federal 

Government entities or private parties 

and would not impose an unfunded 

mandate of more than $100 million per 

year or have a significant or unique 

effect on State, local, or tribal 

governments or the private sector 

because we, as the lead agency for 

CITES implementation in the United 

States, are responsible for the 

authorization of shipments of live 

wildlife, or their parts and products, 

that are subject to the requirements of 

CITES. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This proposed rule does not contain 

any new collections of information that 

require approval by Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995. 

Information that we would collect under 

this proposed rule on FWS Form 3–200– 

27 is covered by an existing OMB 

approval and has been assigned OMB 

control number 1018–0093, which 

expires on November 30, 2010. We may 

not conduct or sponsor, and a person is 

not required to respond to, a collection 

of information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et seq.) 

This proposed rule does not 

constitute a major Federal action 

significantly affecting the quality of the 

human environment. The action is 

categorically excluded under 516 DM 2, 

Appendix 1.10 in the Departmental 

Manual. A detailed statement under the 

National Environmental Policy Act of 

1969 is not required. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Proposed Rules 54585 

Takings (Executive Order 12630) 

In accordance with Executive Order 

(E.O.) 12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have determined that this proposed rule 

would not have significant takings 

implications since there are no changes 

in what may be exported. 

Federalism (Executive Order 13132) 

In accordance with E.O. 13132 

(Federalism), this proposed rule would 

not have significant Federalism effects. 

A Federalism assessment is not required 

because this proposed rule would not 

have a substantial direct effect on the 

States, on the relationship between the 

Federal Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Although this 

proposed rule would generate 

information that would be beneficial to 

State wildlife agencies, it is not 

anticipated that any State monitoring or 

control programs would need to be 

developed to fulfill the purpose of this 

proposed rule. We have consulted the 

States, through the Association of Fish 

and Wildlife Agencies, on this proposed 

action. The CITES Technical Work 

Group of the Association of Fish and 

Wildlife Agencies has concluded that 

including hellbenders in CITES 

Appendix III is warranted in order to 

help ensure conservation of the species 

in the wild and to assist State agencies 

in regulating harvest and trade. 

Civil Justice Reform (Executive Order 

12988) 

The Department, in promulgating this 

rule, has determined that it will not 

unduly burden the judicial system and 

that it meets the requirements of 

sections 3(a) and 3(b)(2) of Executive 

Order 12988. 

Government-to-Government 

Relationship with Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

Government-to-Government Relations 

with Native American Tribal 

Governments (59 FR 22951), E.O. 13175, 

and the Department of the Interior’s 

manual at 512 DM 2, we have a 

responsibility to communicate 

meaningfully with recognized Federal 

Tribes on a government-to-government 

basis. In accordance with Secretarial 

Order 3206 of June 5, 1997 (American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act), we readily 

acknowledge our responsibilities to 

work directly with Tribes in developing 

programs for healthy ecosystems, to 

acknowledge that tribal lands are not 

subject to the same controls as Federal 

public lands, to remain sensitive to 

Indian culture, and to make information 

available to Tribes. We determined that 

this proposed action would have no 

effect on Tribes or tribal lands. 

Energy Supply, Distribution, or Use 

(Executive Order 13211) 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211; Actions 

Significantly Affect Energy Supply, 

Distribution, or Use) on regulations that 

significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. This proposed action is 

not expected to significantly affect 

energy supplies, distribution, or use. 

Therefore, this action is not a significant 

energy action, and no Statement of 

Energy Effects is required. 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988, and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

References Cited 

A complete list of all references cited 

in this proposed rule is available on the 

Internet at http://www.regulations.gov 

or upon request from the Division of 

Management Authority, U.S. Fish and 

Wildlife Service (see FOR FURTHER

INFORMATION CONTACT). 

Author 

The primary author of this proposed 

rule is Clifton A. Horton, Division of 

Management Authority, U.S. Fish and 

Wildlife Service (see FOR FURTHER

INFORMATION CONTACT). 

* * * * * 

Dated: August 19, 2010. 

Wendi Weber, 

Acting Deputy Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2010–22251 Filed 9–7–10; 8:45 am] 

BILLING CODE 4310–55–S 


srobinson on DSKHWCL6B1PROD with PROPOSALS