[Federal Register: September 8, 2010 (Volume 75, Number 173)]
[Proposed Rules]
[Page 54579-54585]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08se10-30]
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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:
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,
[[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
[[Page 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 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