[Federal Register Volume 75, Number 173 (Wednesday, September 8, 2010)]
[Proposed Rules]
[Pages 54579-54585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22251]


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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.

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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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-R9-
IA-2009-0033.
    <bullet> 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,

[[Page 54580]]

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 non-CITES-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 10\th\ and 14\th\ 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;

[[Page 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

[[Page 54582]]

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 CITES-listed 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 [deg]Fahrenheit (F) (20 [deg]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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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 Appendix-

[[Page 54584]]

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.

[[Page 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