This rule is issued under Marketing Order No. 985 (7 CFR part 985), as amended, regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah), hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the provisions of the marketing order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This rule increases the quantity of Scotch and Native spearmint oil produced in the Far West that handlers may purchase from, or handle on behalf of, producers during the 2011-2012 marketing year, which began on June 1, 2011, and ends on May 31, 2012.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

The original salable quantity and allotment percentages for Scotch and Native spearmint oil for the 2011-2012 marketing year were recommended by the Committee at its October 13, 2010, meeting. The Committee recommended salable quantities of 694,774 pounds and 1,012,983 pounds, and allotment percentages of 34 percent and 44 percent, respectively, for Scotch and Native spearmint oil. A proposed rule was published in the Federal Register on March 4, 2011 (76 FR 11971). Comments on the proposed rule were solicited from interested persons until April 4, 2011. No comments were received. Subsequently, a final rule establishing the salable quantities and allotment percentages for Scotch and Native spearmint oil for the 2011-2012 marketing year was published in the Federal Register on May 13, 2011 (76 FR 27852).

This rule revises the quantity of Scotch and Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2011-2012 marketing year, which ends on May 31, 2012. Pursuant to authority contained in §§ 985.50, 985.51, and 985.52 of the order, the full eight member Committee met on August 17, 2011, to consider pertinent market information on the current supply, demand, and price of spearmint oil. The Committee, in two separate motions, recommended that the 2011-2012 marketing year Scotch and Native spearmint oil allotment percentages be increased by 2 percent and 11 percent, respectively. The motion to increase the allotment percentage for Scotch was unanimous and the motion to increase the allotment percentage for Native passed with seven members in favor and one member opposed. The member opposed to the motion agreed that an increase was necessary for the industry to respond to increasing demand, but based his vote on the opinion that an 11 percent increase was too high this early in the marketing year.

Thus, taking into consideration the following discussion, this rule increases the 2011-2012 marketing year salable quantities and allotment percentages for Scotch and Native spearmint oil to 733,913 pounds and 36 percent, and 1,266,161 pounds and 55 percent, respectively.

The salable quantity is the total quantity of each class of oil that handlers may purchase from, or handle for, producers during the marketing year. The total salable quantity is divided by the total industry allotment base to determine an allotment percentage. Each producer is allotted a share of the salable quantity by applying the allotment percentage to the producer's individual allotment base for the applicable class of spearmint oil.

The total industry allotment base for Scotch spearmint oil for the 2011-2012 marketing year was estimated by the Committee at the October 13, 2010, meeting at 2,043,453 pounds. This was later revised at the beginning of the 2011-2012 marketing year to 2,038,595 pounds to reflect the loss of 4,858 pounds of base due to non-production of some producers' total annual allotments during the 2010-2011 marketing year.

Section 985.53(e) of the order requires that producers make a bona fide effort to produce all of their respective allotment base each year. Failure to do so results in a reduction in the producer's allotment base equivalent to such unproduced portion. The 4,858 pound reduction in allotment base for Scotch spearmint oil reflects the total base surrendered by all producers due to the non-production of those producers' total annual allotments during the 2010-2011 marketing year.

When the revised total Scotch allotment base of 2,038,595 pounds is applied to the originally established allotment percentage of 34 percent, the initially established 2011-2012 marketing year salable quantity of 694,774 pounds is effectively modified to 693,122 pounds. After accounting for a rounding adjustment of 19 pounds, the actual 2011-2012 marketing year annual allotment for Scotch spearmint oil prior to this increase is 693,141 pounds.

The same situation applies to Native spearmint oil where the Committee estimated at the October 13, 2010, meeting that the total industry allotment base for Native spearmint oil for the 2011-2012 marketing year was 2,302,233 pounds. This number was later revised at the beginning of the 2011-2012 marketing year to 2,301,926 pounds to reflect the bona fide effort reduction of 307 pounds. Just as with Scotch spearmint oil, the 307 pound reduction in Native allotment base reflects the total base surrendered by all producers due to the non-production of such producers' total annual allotments during the 2010-2011 marketing year.

When the revised total Native allotment base of 2,301,926 pounds is applied to the originally established allotment percentage of 44 percent, the initially established 2011-2012 marketing year Native salable quantity of 1,012,983 pounds is effectively modified to 1,012,847 pounds. After accounting for 102 pounds of rounding adjustments when calculating each producer's annual allotment, the actual 2011-2012 total annual allotment of Native spearmint oil prior to this increase is 1,012,949 pounds.

By increasing the salable quantity and allotment percentage, this rule makes additional amounts of Scotch and Native spearmint oil available to the market. Such additional oil may come from spearmint oil produced in the current marketing year or by releasing oil from the reserve pool. As of May 31, 2011, the Committee estimated the Scotch reserve pool to contain 454,715 pounds of spearmint oil and the Native reserve pool to contain 606,942 pounds of spearmint oil.

When the allotment percentage increases established by this rule are applied to each individual producer, each such producer may deliver up to an amount equal to such allotment from their 2011-2012 marketing year's production, from spearmint oil transferred from another producer's 2011-2012 marketing year production, or from the respective class of oil held in reserve. However, pursuant to §§ 985.56 and 985.156, producers with excess oil are only able to transfer such excess oil to other producers to fill deficiencies in annual allotments prior to October 31 of each marketing year. The Committee expects that all individuals entitled to a pro rata increase in the salable quantity allotment for each class of spearmint oil will be able to exercise the full marketing rights associated with such an increase.

Therefore, the 2 percent increase in the Scotch spearmint oil allotment percentage established by this rule is expected to result in a 2011-2012 marketing year salable quantity of 733,913 pounds. Likewise, the 11 percent increase in the Native spearmint oil allotment percentage established by this rule is expected to result in a 2011-2012 marketing year salable quantity of 1,266,161 pounds. This reflects an additional 40,772 pounds of Scotch spearmint oil and 253,212 pounds of Native spearmint oil being made available to the market by this rule.

The following summarizes the Committee recommendations:

(A) Estimated 2011-2012 Scotch Allotment Base—2,043,453 pounds. This is the estimate on which the original 2011-2012 salable quantity and allotment percentage was based.

(B) Revised 2011-2012 Scotch Allotment Base—2,038,595 pounds. This is 4,858 pounds less than the estimated allotment base of 2,043,453 pounds. The difference is the result of some producers failing to produce all of their 2010-2011 allotment.

(C) Original 2011-2012 Scotch Allotment Percentage—34 percent. This was unanimously recommended by the Committee on October 13, 2010.

(D) Original 2011-2012 Scotch Salable Quantity—694,774 pounds. This figure is 34 percent of the estimated 2011-2012 allotment base of 2,043,453 pounds.

(E) Adjusted 2011-2012 Scotch Salable Quantity—693,141 pounds. This figure reflects the salable quantity actually available at the beginning of the 2011-2012 marketing year. This quantity is derived by applying the 34 percent allotment percentage to the revised allotment base of 2,038,595. This adjusted salable quantity also accounts for a 19 pound increase due to rounding.

(F) Current Revision to the 2011-2012 Scotch Salable Quantity and Allotment Percentage:

(1) Increase in Scotch Allotment Percentage—2 percent. The Committee recommended a 2 percent increase at its August 17, 2011, meeting.

(2) 2011-2012 Scotch Allotment Percentage—36 percent. This figure is derived by adding the increase of 2 percent to the original 2011-2012 allotment percentage of 34 percent.

(3) Calculated Revised 2011-2012 Scotch Salable Quantity—733,913 pounds. This figure is 36 percent of the revised 2011-2012 allotment base of 2,038,595 pounds plus the 19 pound rounding adjustment.

(4) Computed Increase in the 2011-2012 Scotch Salable Quantity—40,772 pounds. This figure is 2 percent of the revised 2011-2012 allotment base of 2,038,595 pounds.

The 2011-2012 marketing year began on June 1, 2011, with an estimated carry-in of 227,241 pounds of salable Scotch spearmint oil. When the estimated carry-in is added to the revised 2011-2012 salable quantity of 693,141 pounds, the result is a total estimated available supply of Scotch spearmint oil for the 2011-2012 marketing year of 920,382 pounds. Of this amount, 733,877 pounds of Scotch spearmint oil have already been sold or committed, which leaves just 186,505 pounds available for sale for the remainder of the 2011-2012 marketing year.

In making this recommendation to increase the available supply of Scotch spearmint oil, the Committee considered all available information on price, supply, and demand. The Committee also considered reports and other information from handlers and producers in attendance at the meeting and reports given by the Committee manager from handlers and producers who were not in attendance. By increasing the 2011-2012 Scotch spearmint oil salable percentage by 2 percent, an estimated additional 40,772 pounds will be made available to the market. This amount combined with the 186,505 pounds currently available, will make a total of 227,277 pounds available to the market and bring the total available supply of Scotch spearmint oil for the marketing year to 961,154 pounds.

When the original 2011-2012 marketing policy statement was drafted, handlers estimated that the demand for Scotch spearmint oil for the 2011-2012 marketing year may be 800,000 pounds. However, when the Committee made its original recommendation for the establishment of the Scotch spearmint oil salable quantity and allotment percentage for the 2011-2012 marketing year, it had not anticipated the increase in demand for Scotch spearmint oil that the market is currently experiencing. The Committee believes that the supply of Scotch spearmint oil available to the market, without an increase in the salable quantity, would be insufficient to satisfy the current demand for oil at reasonable price levels. Therefore, it is the opinion of the industry that this action is essential to ensuring an adequate supply of Scotch spearmint oil to the market.

(A) Estimated 2011-2012 Native Allotment Base—2,302,233 pounds. This is the estimate on which the original 2011-2012 Native spearmint oil salable quantity and allotment percentage was based.

(B) Revised 2011-2012 Native Allotment Base—2,301,926 pounds. This is 307 pounds less than the estimated allotment base of 2,302,233 pounds. The difference is the result of some producers failing to produce all of their 2010-2011 allotment.

(C) Original 2011-2012 Native Allotment Percentage—44 percent. This was unanimously recommended by the Committee at its October 13, 2010 meeting.

(D) Original 2011-2012 Native Salable Quantity—1,012,983 pounds. This figure is 44 percent of the estimated 2011-2012 allotment base of 2,302,233.

(E) Adjusted 2011-2012 Native Salable Quantity—1,012,949 pounds. This figure reflects the salable quantity actually available at the beginning of the 2011-2012 marketing year. This quantity is derived by applying the 44 percent allotment percentage to the revised allotment base of 2,301,926. The adjusted salable quantity also accounts for a 101 pound increase due to rounding.

(F) Current Revision to the 2011-2012 Native Salable Quantity and Allotment Percentage:

(1) Increase in Native Allotment Percentage—11 percent. The Committee recommended an 11 percent increase at its August 17, 2011, meeting.

(2) 2011-2012 Native Allotment Percentage—55 percent. This figure is derived by adding the increase of 11 percent to the original 2011-2012 allotment percentage of 44 percent.

(3) Calculated Revised 2011-2012 Native Salable Quantity—1,266,161 pounds. This figure is 55 percent of the revised 2011-2012 allotment base of 2,301,926 pounds, plus the 101 pound increase due to rounding.

(4) Computed Increase in the 2011-2012 Native Salable Quantity—253,212 pounds. This figure is 11 percent of the revised 2011-2012 allotment base of 2,301,926 pounds.

The 2011-2012 marketing year began on June 1, 2011, with an estimated carry-in of 164,809 pounds of salable Native spearmint oil. When the estimated carry-in is added to the revised 2011-2012 salable quantity of 1,012,949 pounds, the result is a total estimated available supply of Native spearmint oil for the 2011-2012 marketing year of 1,177,758 pounds. Of this amount, 1,076,114 pounds of oil have already been sold or committed for the 2011-2012 marketing year, which leaves just 101,644 pounds available for sale.

In making this recommendation, the Committee considered all available information on price, supply, and demand. The Committee also considered reports and other information from handlers and producers in attendance at the meeting and reports given by the Committee manager from handlers and producers who were not in attendance. By increasing the 2011-2012 Native spearmint oil salable percentage by 11 percent, an estimated additional 253,212 pounds will be made available to the market. This amount combined with the 101,644 pounds currently available, will make a total of 354,856 pounds available to the market and bring the total available supply of Native spearmint oil for the year to 1,430,970 pounds.

When the original 2011-2012 marketing policy statement was drafted, handlers estimated that the demand for Native spearmint oil for the 2011-2012 marketing year may be 1,130,000 pounds. However, when the Committee made its original recommendation for the establishment of the Native spearmint oil salable quantity and allotment percentage for the 2011-2012 marketing year, it had not anticipated the increase in demand for Native spearmint oil that the market is currently experiencing. The Committee believes that the supply of Native spearmint oil available to the market, without an increase in the salable quantity, would be insufficient to satisfy the current demand for oil at reasonable price levels. Therefore, it is the opinion of the industry that this action is essential to ensuring an adequate supply of Native spearmint oil to the market.

Based on its analysis of available information, USDA has determined that the salable quantity and allotment percentage for Scotch spearmint oil for the 2011-2012 marketing year should be increased to 733,913 pounds and 36 percent, respectively. In addition, USDA has determined that the salable quantity and allotment percentage for Native spearmint oil for the 2011-2012 marketing year should be increased to 1,266,161 pounds and 55 percent, respectively.

This rule relaxes the regulation of Scotch and Native spearmint oil and will allow producers to meet market demand while improving producer returns. In conjunction with the issuance of this rule, the Committee's revised marketing policy statement for the 2011-2012 marketing year has been reviewed by USDA. The Committee's marketing policy statement, a requirement whenever the Committee recommends implementing volume regulations or recommends revisions to existing volume regulations, meets the intent of § 985.50 of the order. During its discussion of revising the 2011-2012 salable quantities and allotment percentages, the Committee considered: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) prospective production of each class of oil; (4) total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Conformity with USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” has also been reviewed and confirmed.

The increases in the Scotch and Native spearmint oil salable quantity and allotment percentage allows for anticipated market needs for both classes of oil. In determining anticipated market needs, consideration by the Committee was given to historical sales, and changes and trends in production and demand.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are 8 spearmint oil handlers subject to regulation under the order, and approximately 32 producers of Scotch spearmint oil and approximately 88 producers of Native spearmint oil in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000.

Based on the SBA's definition of small entities, the Committee estimates that two of the eight handlers regulated by the order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 8 of the 32 Scotch spearmint oil producers and 22 of the 88 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, a majority of handlers and producers of Far West spearmint oil may not be classified as small entities.

The use of volume control regulation allows the industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. Volume control is believed to have little or no effect on consumer prices of products containing spearmint oil and likely does not result in fewer retail sales of such products. Without volume control, producers would not be limited in the production and marketing of spearmint oil. Under those conditions, the spearmint oil market would likely fluctuate widely. Periods of oversupply could result in low producer prices and a large volume of oil stored and carried over to future crop years. Periods of undersupply could lead to excessive price spikes and could drive end users to source flavoring needs from other markets, potentially causing long term economic damage to the domestic spearmint oil industry. The marketing order's volume control provisions have been successfully implemented in the domestic spearmint oil industry for nearly three decades and provide benefits for producers, handlers, manufacturers, and consumers.

This rule increases the quantity of Scotch and Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2011-2012 marketing year, which ends on May 31, 2012. This rule increases the Native spearmint oil salable quantity from 693,141 pounds to 733,913 pounds and the allotment percentage from 34 percent to 36 percent. Additionally, this rule increases the Native spearmint oil salable quantity from 1,012,949 pounds to 1,266,161 pounds and the allotment percentage from 44 percent to 55 percent.

Based on projections available at the meeting, the Committee considered a number of alternatives to this increase. The Committee not only considered leaving the salable quantity and allotment percentage unchanged, but also considered other potential levels of increase. The Committee reached its recommendation to increase the salable quantity and allotment percentage for both Scotch and Native spearmint oil after careful consideration of all available information, and believes that the levels recommended will achieve the objectives sought. Without the increase, the Committee believes the industry would not be able to satisfactorily meet market demand.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178, Vegetable and Specialty Crop Marketing Orders. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the spearmint oil industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the August 17, 2011, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Laurel May at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on a change to the salable quantity and allotment percentage for both Scotch and Native spearmint oil for the 2011-2012 marketing year. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that this interim rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This rule increases the quantity of Scotch and Native spearmint oil that may be marketed during the marketing year, which ends on May 31, 2012; (2) the current quantity of Scotch and Native spearmint oil may be inadequate to meet demand for the 2011-2012 marketing year, thus making the additional oil available as soon as is practicable will be beneficial to both handlers and producers; (3) the Committee recommended these changes at a public meeting and interested parties had an opportunity to provide input; and (4) this rule provides a 60-day comment period and any comments received will be considered prior to finalization of this rule.

For the reasons set forth in the preamble, 7 CFR part 985 is amended as follows:

On July 6, 2011, the Commission published a notice of proposed rulemaking concerning the filing of documents with the agency. 76 FR 39750, July 6, 2011. This notice of final rulemaking is based on that notice. On the same day, the Commission published a notice seeking public comment on a draft Handbook on Electronic Filing Procedures. 76 FR 39757, July 6, 2011. The preamble below is designed to assist readers in understanding these amendments to the Commission's Rules. This preamble provides background information, a regulatory analysis of the amendments, a discussion of the comments received from the public, and a section-by-section explanation of the amendments.

Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes the Commission to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties. This rulemaking seeks to improve provisions of the Commission's existing Rules of Practice and Procedure. The Commission is amending its rules covering proceedings such as investigations and reviews conducted under title VII and section 337 of the Tariff Act of 1930 (19 U.S.C. 1337, 1671 et seq. ), sections 202, 406, 421, 422 of the Trade Act of 1974 (19 U.S.C. 2252, 2436, 2451, 2451a), and sections 302 and 312 of the North American Free Trade Agreement Implementation Act (19 U.S.C. 3352, 3372).

Consistent with its ordinary practice, the Commission is issuing these amendments in accordance with provisions of section 553 of the APA (5 U.S.C. 553), although not all provisions apply to this rulemaking. The APA procedure entails the following steps: (1) Publication of a notice of proposed rulemaking; (2) solicitation of public comments on the proposed amendments; (3) Commission review of public comments on the proposed amendments; and (4) publication of final amendments at least thirty days prior to their effective date.

The Commission will now require that most filings with the agency be made by electronic means. The electronic version will constitute the official record document and any paper form of the document must be a true copy and identical to the electronic version. The Commission's Electronic Document Information System (EDIS) already accepts electronic filing of certain documents, and will be the mechanism by which participants in Commission proceedings electronically file their documents in the future. Previously, submitters have been permitted to file only public documents into EDIS. The new rules provide for the electronic filing of documents containing confidential business information and business proprietary information into EDIS. A new Handbook on Filing Procedures will supersede the Commission's current Handbook on Electronic Filing Procedures, and will provide more detailed information on the filing process. The Commission has sought public comment concerning the new handbook in a separate notice. Persons seeking to file documents will be required to comply with the revised rules and the Handbook on Filing Procedures.

The Commission estimates that electronic filing of most documents will significantly reduce the cost to the agency of processing documents. These costs include labor costs for scanning paper documents into EDIS, storage costs for paper documents, and costs for continuity of operations. Electronic filing also is expected to improve the efficiency and effectiveness of the filing process because documents will be entered into EDIS more rapidly. Electronic filing also accords with government-wide initiatives encouraging agencies to do business electronically.

Although the Commission intends to require electronic filing of most documents, documents generally will also be submitted in paper form. The agency will allow some documents to be filed in paper form by noon on the next business day. Moreover, witness testimony and hearing materials in import injury investigations and reviews will be submitted only in paper form, and public versions of testimony will be accepted at the relevant conference or hearing. The rules will provide the Secretary to the Commission with the authority to establish exceptions and modifications to the requirement to electronically file documents, as more fully described in the Handbook on Filing Procedures.

The changes to the filing process are not intended to affect the current practice with respect to the filing of responses to Commission questionnaires in import injury investigations and reviews.

The Commission has determined that the final rules do not meet the criteria described in section 3(f) of Executive Order 12866 (58 FR 51735, Oct. 4, 1993) and thus do not constitute a significant regulatory action for purposes of the Executive Order.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is inapplicable to this rulemaking because it is not one for which a notice of final rulemaking is required under 5 U.S.C. 553(b) or any other statute. Although the Commission chose to publish a notice of proposed rulemaking, these regulations are “agency rules of procedure and practice,” and thus are exempt from the notice requirement imposed by 5 U.S.C. 553(b).

These rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).

No actions are necessary under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq. ) because the rules will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments.

The rules are not major rules as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ). Moreover, they are exempt from the reporting requirements of the Contract With America Advancement Act of 1996 (Pub. L. 104-121) because they concern rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.

The amendments are not subject to section 3504(h) of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ), because the amendments would impose no new collection of information under the statute.

The Commission received 10 sets of comments on the notice of proposed rulemaking. Commenters generally made comments both on that notice and on the related notice concerning the Handbook. Comments were received from Adduci, Mastriani, & Schaumberg LLP (AMS); the American Bar Association Section of Intellectual Property (ABA); the American Intellectual Property Law Association (AIPLA); the Customs and International Trade Bar Association (CITBA); Hughes Hubbard & Reed LLP (Hughes Hubbard); the ITC Trial Lawyers Association (ITC TLA); Kelley Drye & Warren (Kelley Drye); Stewart and Stewart; Wiley Rein LLP, on behalf of Nucor Corporation (Wiley Rein); and Williams Mullen. Issues raised in the comments will be addressed in this section. The section first addresses comments made by two or more commenters on the same issue, then addresses unique comments made by one commenter. The Commission appreciates the comments received, and the thoughtful and thorough analysis on which they are based.

AMS, the CITBA, Hughes Hubbard, the ITC TLA, Kelley Drye, Wiley Rein, and Williams Mullen oppose requiring the submission of paper copies of documents in addition to their electronic filing. Several commenters pointed to government-wide initiatives that support moving to electronic filing. CITBA contends that the Commission's new procedure will increase the burden on submitters. CITBA, among others, cites as examples that entries of appearance and public versions of confidential filings, that in the past could have been filed electronically, will now have to be filed both electronically and in paper form. Hughes Hubbard, Kelley Drye, and Wiley Rein submit that the Commission will incur storage costs for paper copies. Hughes Hubbard suggests that, if the paper filing requirement is retained, the number of required copies should be reduced from eight to four. AMS suggests requiring one paper copy, and setting an end date for the requirement.

AMS suggests that the new policy may result in increased costs and reduced efficiency for the Commission. Kelley Drye and Wiley Rein warn that the Commission will need to verify that electronic and paper submissions are correct, and deal with problems arising from improper filings. Wiley Rein expresses the concern that the requirement to simultaneously file electronically and submit paper copies will lead to an increase in filing problems such as administrative protective order violations. Wiley Rein expresses the concern that the proposed rules and Handbook did not explain (1) The status of a filing where the paper version is timely received but not the electronic version, or vice versa; (2) the process to follow where there are differences between the versions, and (3) whether a special process will be used if business proprietary information is redacted in one version but not the other. Wiley Rein notes that, although electronic filing of business proprietary data appears to be required, it is not explicitly stated, and the Commission has not explained whether proprietary data must be marked and controlled to ensure against unauthorized access.

In developing its new filing policy, the Commission seeks to meet its needs for filings in particular formats without unduly burdening submitters. As a preliminary matter, the Commission confirms that the electronic filing requirement covers documents containing business proprietary or confidential business information. EDIS currently provides for specifying whether a document contains confidential information, and blocks access by members of the public to such documents. Language is being added to the Handbook to more fully address the filing of confidential material.

The Commission recognizes the arguments for moving fully to electronic filing. However, after careful consideration, the Commission has decided that the paper copies it will require are currently necessary for carrying out the agency's functions. At the present time, eight paper copies—a reduction from fourteen—are needed. The copies are provided to each Commissioner's office as well as relevant staff offices. Commission proceedings operate under very short deadlines and filings are voluminous. Paper copies are needed to ensure that staff and decision-makers can efficiently and fully review and analyze submissions in such short time periods. It is not practicable for the agency to print out paper copies of complicated documents for Commissioners and staff as rapidly as they are needed. Such documents often include tabbed sections, appendices, and color graphics, and the parties are in a better position to present the paper versions of their filings in the manner they intend them to be presented. Storage costs should not be substantial, because the Commission's records disposition schedule allows for prompt destruction of paper copies after the proceeding is completed. To the extent that the requirement to simultaneously file electronically and submit paper copies poses a problem for submitters, the Commission urges submitters to consult with the Secretary to help ensure that filings are accomplished correctly.

However, in the interest of reducing the burden on submitters, the Commission will not require certain documents, such as entries of appearance, to be filed in paper form. In addition, as the Commission periodically reviews its regulations, it may revisit the filing requirement after it has had a chance to function for a time, and may make further changes to the requirement as warranted by experience. However, the Commission cannot yet specify a schedule for this review.

The Commission wishes to emphasize that all of the requirements relating to filing of documents will be enforced. In particular, the failure to redact business proprietary information from the electronic version of a document may constitute a breach of the administrative protective order whether or not the redaction was done properly in the paper copies; the same would be true if the problem appeared in the paper copies.

Hughes Hubbard, Kelley Drye, and Williams Mullen suggest that the Commission require that petitions in import injury proceedings be filed electronically. Kelley Drye indicates that the proposed rulemaking did not make clear whether exhibits and attachments would need to be in paper form as well as on electronic media. They also believe that it was not clear whether eight paper copies of the petition are required.

Because of the special handling that petitions require, electronic filing of such documents would not meet the agency's needs at this time. However, with respect to exhibits, appendices, and attachments to petitions, the Commission requires these documents to be filed only on electronic media and not in paper form. The Commission requires that the original plus eight paper copies of the confidential version of the petition and four paper copies of the public version of the petition must be filed.

AMS, the CITBA, Hughes Hubbard, Kelley Drye, Wiley Rein, and Williams Mullen urge the Commission to retain the one-day rule on the filing of public versions of confidential documents in import injury proceedings. The Commission did not intend to eliminate this rule, which the agency agrees serves a valuable function. The Commission is clarifying in its Handbook that the one-day rule has been retained.

The AIPLA and the ABA suggest that the Commission clarify the filing requirements in section 337 proceedings by setting out those requirements in section 210.4(f), rather than employing cross-references among several rules. The final rules adopt the suggested approach to address this concern.

AMS, the AIPLA and the ABA express the concern that the proposed rules imply the creation of a same-day rule for filing the public version of a confidential submission. In a similar vein, the ITC TLA urges the Commission to not require the filing of public versions of all confidential documents. The Commission did not intend to create such a general requirement. However, the rules already provide for the filing of public versions of some confidential filings.

The AIPLA and the ABA suggest replacing in section 210.4(f) “submissions pursuant to an order of the presiding” ALJ with “submissions filed with the Secretary pursuant to an order of the presiding ALJ.” The ITC TLA makes a similar comment. The ABA suggests making a similar revision to section II(C) of the Handbook. The Commission has adopted this suggestion.

The AIPLA, the ABA, and the ITC TLA suggest clarifying whether the Commission is removing the requirement to submit copies of the complaint for service on parties and embassies. The Commission does not intend to remove this requirement, and is reflecting this clarification in its rules.

The AIPLA and the ABA suggest deleting new section II(J)(3) of the Handbook as unnecessarily onerous. The ITC TLA suggests that the requirement is particularly difficult for counsel not resident in Washington, DC. The Commission has modified that section to simplify the procedure.

The ABA suggests clarifying in section 210.8 whether the Commission intends to remove procedures for the separation of confidential and nonconfidential versions of documents such as complaints, and for submitting multiple copies of exhibits, appendices, and attachments. The ITC TLA similarly indicates that the proposed rules appear to eliminate the requirement to separate the public and confidential versions of the complaint. The Commission does not intend to remove the requirement to separate the public and confidential versions of documents, and is clarifying this point in its rules.

The AIPLA and the ABA suggest removing the requirement in section II(K) of the Handbook that parties obtain approval of the presiding administrative law judge in order to effect electronic service. The AIPLA offers a proposed amendment to section 201.16(f) to streamline service. The ABA suggests adding electronic service on lead counsel as a default method of service. Stewart and Stewart urges the Commission to consider allowing parties to serve public documents electronically if other parties consent to such service, and requesting that parties include in their entries of appearance a statement on whether they consent. The ITC TLA urges the Commission to clarify the discussion of service in the Handbook with respect to whether permission is required for electronic service during the Commission review phase of a section 337 proceeding, and whether such service requires the consent of both the presiding administrative law judge and the relevant party.

The Commission has determined to amend its rule on service to remove the requirement for obtaining the consent of the Secretary or the presiding administrative law judge in order to effect service electronically. A party will be able to opt out of being served electronically by notifying the Secretary or the administrative law judge, and the other parties to a proceeding.

The ABA suggests that section II(C)(4) of the Handbook be revised to adopt a default filing date of the next business day in the event of a closure of the Commission, regardless of whether the electronic docketing system is operational. The ITC TLA makes a similar comment. The Commission has adopted the suggestion.

AMS notes that the reproduction of items on EDIS beyond fair use requires the registered user's permission. Paragraph L of the Handbook addresses copyright issues.

The AIPLA proposes to replace “copies” with “a copy” in section 201.16. The Commission has adopted this suggestion.

The AIPLA suggests replacing the term “true copies.” The Commission believes that the term is clearer than the proposed alternative, but has added clarifying language to its rules.

The AIPLA suggests clarifying in section II(c)(4) of the Handbook how a submitter is to notify the Secretary of a technical failure at a time when the agency is closed but EDIS is operational. The Commission believes that this clarification is not needed in view of the fact that the Commission will extend electronic filing deadlines to the next business day after the agency closure.

The ABA suggests adding a provision to section II(C) of the Handbook stating that, in case of a conflict between the Handbook and the instructions issued by the presiding administrative law judge, the latter controls. The Commission is including such a provision in the Handbook, but notes that if the conflict is between the administrative law judge's ground rules and the Commission's rules, the latter control.

Hughes Hubbard urges the Commission to set the deadline for electronic filing at midnight on the relevant day, rather than at 5:15 p.m. The Commission needs to retain the existing deadline in order to ensure proper receipt and tracking of electronic filings.

Hughes Hubbard recommends that the Commission extend the procedure for reporting an EDIS failure to the reporting of a technical failure in the submitter's system. The Commission is not adopting this change, because of the difficulty of determining whether a submitter's system has failed.

Hughes Hubbard suggests that the Commission develop a standard e-filing declaration concerning technical failures. The Commission considers that such a form may not be practical, because of the variety of circumstances that may arise.

Hughes Hubbard suggests that the Commission add “(unless otherwise authorized by the Commission)” to the rule on posthearing briefs. The Commission does not believe that this addition is necessary, because the Commission, pursuant to section 201.4, has the authority to modify its page limit requirements where a particular instance so warrants.

The ITC TLA urges the Commission to make clear whether and how confidential business information is to be filed electronically. The Commission confirms that the electronic filing requirement covers documents containing business proprietary or confidential business information. EDIS currently provides for specifying whether a document contains confidential information, and blocks access by members of the public to such documents. Language is being added to the Handbook to more fully address the filing of confidential material.

The ITC TLA requests clarification of the relationship between copies provided for in sections 201.14 and 210.4 and copies required under the ground rules of the presiding administrative law judge. The copies provided for in the Commission rules are distinct and in addition to any copies required in ground rules.

The ITC TLA suggests specifying how many copies are required of the exhibits, appendices, and attachments to a complaint. The Commission will only require a single copy of such documents on CD-ROM or other approved media. If the documents contain confidential business information, however, a public version shall be filed on separate media.

The ITC TLA recommends that the Handbook specify that the Commission rules control in any conflict between the Handbook and the rules. The Handbook contains such a statement.

The ITC TLA suggests specifying in section H(1) of the Handbook whether a submitter is required to perform optical character recognition prior to submitting a document. The Commission does not require submitters to perform such a process.

The ITC TLA suggests clarifying the term “attestation” as used in the Handbook. To avoid confusion, the term “attest” is being replaced by “certify,” a term that is already used in the rules, such as in 19 CFR 201.6.

The ITC TLA suggests clarifying the Appendix to the Handbook by specifying that certain categories do not refer to section 337 documents. The Appendix has been revised to clearly distinguish between instructions for filing section 337 documents and instructions for other filings.

Wiley Rein urges the Commission to not adopt the proposed regulations and Handbook in their present form. Instead, Wiley Rein suggests that the Commission (1) Undertake additional review and then publish a new proposal for public comment, (2) revise its rules to permit electronic-only filing, or (3) permit electronic filing one day after all paper submissions. As discussed above, the Commission has decided that it must require electronic filing and the submission of paper copies of certain documents at this time. The Commission considers that these processes must be simultaneous in import injury proceedings due to the short timeframe and to facilitate review by the Commissioners and staff in these proceedings. The Commission is issuing this notice of final rulemaking rather than a new proposal for comment because it wishes to implement its new requirement as soon as possible, with the attendant benefits described in the notice of proposed rulemaking.

Wiley Rein suggests that the Commission provide more detail concerning the filing of voluminous documents, such as by emulating the Commerce Department, which provides for special handling of documents over 500 pages in length. The Commission does not believe that further guidance is necessary, because EDIS is capable of handling voluminous documents such as documents containing 500 pages.

For the reasons stated in the preamble, the United States International Trade Commission amends 19 CFR parts 201, 206, 207, and 210 as follows:

Background

The final regulations that are the subject of this correction are under sections 170A, 507, 509, 6033 and 6043 of the Internal Revenue Code.

As published, final regulations (TD 9549) contain an error that may prove to be misleading and is in need of clarification.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendment:

Background

The final regulations that are the subject of this correction are under sections 170A, 507, 509, 6033 and 6043 of the Internal Revenue Code.

As published, final regulations (TD 9549) contain an error that may prove to be misleading and is in need of clarification.

Accordingly, the publication of the final regulations (TD 9549) which were the subject of FR Doc. 2011-22614 is corrected as follows:

On page 55747, column 2, in the preamble, under the paragraph heading “ Computation Period for Public Support ”, third paragraph of the column, line 13, the language “§ 1.170A-9(f)(9). The final regulations” is corrected to read “§ 1.170A-9T(f)(9). The final regulations”.

The final regulations (TD 9543) that is the subject of this correction is under section 602 of the Internal Revenue Code.

As published on August 23, 2011 (76 FR 52561), the final regulations (TD 9543) contains an error that may prove to be misleading and is in need of clarification.

Accordingly, 26 CFR part 602 is corrected by making the following correcting amendment:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because any delay encountered in this regulation's effective date by publishing an NPRM would be contrary to public interest since immediate action is needed to protect both spectators and participants from the potential safety hazards associated with these events. We spoke to the event sponsors, and they are unable and unwilling to move their event dates for the following reasons.

The sponsor for CDM Chamber of Commerce Annual Music Festival Fireworks submitted a marine event application with sufficient notice to the Coast Guard. This fireworks display is a recurring marine event with a corresponding entry in a proposed permanent rule for which the NPRM just closed its public comment period (docket number USCG-2008-0384); No public comments were received. The Coast Guard is establishing this temporary safety zone to provide for safety of life during this year's event.

The sponsor for the Dooley Wedding Fireworks stated their event is held in conjunction with a wedding that cannot be moved. The sponsor was not aware of the requirements for submitting a marine event application 135 days in advance resulting in a late notification to the Coast Guard. The sponsor is now aware of the reporting requirements.

The sponsor for the Charles W. Morgan 70th Anniversary Fireworks Display stated they are unable and unwilling to reschedule their event because it is held in conjunction with a 70th anniversary festival that cannot be moved. Rescheduling the event would not be a viable option because the festival is a large public event with numerous venders already scheduled. This is a first time event, the sponsor was not aware of the requirements for submitting a marine event application 135 days in advance, resulting in a late notification to the Coast Guard. The sponsor is now aware of the reporting requirements. For the same reasons under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date by first publishing a NPRM would be contrary to the rule's objectives of ensuring safety of life on the navigable waters during these scheduled events as immediate action is needed to protect both spectators and participants from the potential safety hazards associated with these events including unexpected pyrotechnics detonation and burning debris.

The legal basis for this temporary rule is 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define regulatory safety zones.

This temporary rule establishes safety zones for fireworks displays. Fireworks displays are frequently held on the navigable waters within the COTP Long Island Sound Zone. Based on accidents that have occurred in the past and the explosive hazards of fireworks, the COTP Long Island Sound has determined that fireworks displays proximate to watercrafts pose significant risk to public safety and property.

In order to protect the safety of all waterway users including event participants and spectators, this temporary rule establishes safety zones for the time and location of each event.

This temporary rule establishes safety zones for three fireworks displays in the COTP Long Island Sound Zone. These events are listed below in the text of the regulation in table format.

Because large numbers of spectator vessels are expected to congregate around the location of these events, these regulated areas are needed to protect both spectators and participants from the safety hazards created by them including unexpected pyrotechnics detonation and burning debris.

This rule prevents vessels from entering, transiting, mooring or anchoring within areas specifically designated as regulated areas during the periods of enforcement unless authorized by the COTP or designated representative.

The Coast Guard has determined that these regulated areas will not have a significant impact on vessel traffic due to their temporary nature, limited size, and the fact that vessels are allowed to transit the navigable waters outside of the regulated areas. The COTP will cause public notifications to be made by all appropriate means including but not limited to the Local Notice to Mariners as well as Broadcast Notice to Mariners.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

The Coast Guard determined that this rule is not a significant regulatory action for the following reasons: The regulated areas will be of limited duration and cover only a small portion of the navigable waterways. Furthermore, vessels may transit the navigable waterways outside of the regulated areas. Vessels requiring entry into the regulated areas may be authorized to do so by the COTP or the designated representative.

Advanced public notifications will also be made to the local maritime community by the Local Notice to Mariners as well as Broadcast Notice to Mariners.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the designated regulated areas during the enforcement periods stated for each event listed below in the List of Subjects.

The temporary safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: The regulated areas will be of limited size and of short duration, and vessels that can safely do so may navigate in all other portions of the waterways except for the areas designated as regulated areas. Additionally, notifications will be made before the effective period by all appropriate means, including but not limited to the Local Notice to Mariners and Broadcast Notice to Mariners well in advance of the events.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of safety zones.

An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0800), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Search All” and insert “USCG-2011-0800” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2011-0800” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. Insufficient time exists prior to this event to facilitate requests for a public meeting. If you object to this decision however, you may submit a request for one by October 17, 2011 using one of the four methods specified under ADDRESSES . Please explain in detail why you believe a public meeting would be necessary in this case. If we then determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

From November 9, 2011, through November 16, 2011, the President of the United States, various foreign dignitaries, members of their official parties, and other senior government officials will be attending the 2011 APEC conference in Honolulu, Hawaii. APEC is a multi-national association of economies and their senior leadership from the Asia-Pacific region working together to reduce trade barriers and facilitate business interactions between member nations. The conference is located adjacent to U.S. navigable waters in the Honolulu Captain of the Port Zone. Accordingly, the U.S. Coast Guard is establishing these security zones in order to maintain optimum security for this high visibility event and to ultimately protect the participants of this event from all possible threats associated with vessels and persons in the water. Entry of persons or vessels into these security zones will be prohibited unless authorized by the Captain of the Port (COTP) Honolulu.

This security zone temporary interim rule will be effective from 11 p.m. HST on November 9, 2011 through 11 p.m. HST on November 16, 2011. This security zone covers four areas located within the Honolulu Captain of the Port Zone (See 33 CFR 3.70-10)

The first area is designated as the Ko'olina Offshore Zone and covers all waters creating a box shape, encompassed by a line extending 1500 yards seaward from 21°19′23.63″ N, 158°07′20.83″ W; to 21°18′49.59″ N, 158°07′52.68″ W; then north to 21°21′17.96″ N, 158°08′36.75″ W; then due east to 21°21′18.70″ N, 158°07′49.15″ W; then along the shoreline back to the starting point. The Ko'olina Offshore Zone does not include the entrance of Barbers Point Harbor Channel or the four lagoons adjacent to the Ko'olina Resort. The Ko'olina Offshore Zone will be enforced from 11 p.m. HST on November 12, 2011, to 11 p.m. HST on November 13, 2011.

The second area is designated as the West Waikiki Zone and includes all waters creating a box-like shape offshore of Waikiki Beach and is encompassed by a line connecting the following points: Beginning at 21°16′40.33″ N, 157°50′01.26″ W; to 21°16′10.20″ N, 157°50′37.55″ W; to 21°16′29.28″ N, 157°50′56.69″ W; to 21°16′53.95″ N, 157°50′29.10″ W; then along the shoreline back to the starting point. The West Waikiki Zone includes the offshore area adjacent to the Hilton Hawaiian Village Resort and the Fort DeRussy military reservation. The West Waikiki Zone does not include the two lagoons adjacent to the Hilton Hawaiian Village Resort. The West Waikiki Zone will be enforced from 11 p.m. HST on November 9, 2011 to 11 p.m. HST on November 16, 2011.

A third area is designated as the East Waikiki Zone and includes all waters creating a box-like shape offshore of Waikiki Beach and is encompassed by a line connecting the following points: beginning at 21°16′36.20″ N, 157°49′46.91″ W; to 21°16′05.04″ N, 157°50′20.56″ W; to 21°16′14.87″ N, 157°50′30.98″ W; to 21°16′40.33″ N, 157°50′01.26″ W; then along the shoreline back to the starting point. The East Waikiki Zone includes the offshore area adjacent to the Sheraton Waikiki Hotel and the Outrigger Waikiki Hotel. The East Waikiki Zone will be enforced from 12 a.m. HST to 11 p.m. HST on November 12, 2011.

A fourth area is designated as the Ala Wai Harbor and Canal Zone. It includes a section of the Ala Wai Canal extending from the entrance to the canal in Ala Wai harbor to a point 15 yards northeast of the McCully Bridge and also includes all Ala Wai Harbor waters encompassing the Harbor Working Docks, the “Front Row” along Holomoana Ave, the Loading Dock, G Dock, F Dock, the 400 Row, the south face of X Dock and D Dock. See Example 1 in the docket for an illustration of the Ala Wai harbor section of this security zone. The Ala Wai Harbor and Canal Zone will be enforced from 11 p.m. HST on November 9, 2011 to 11 p.m. HST on November 16, 2011.

A graphic labeled “Illustration of APEC 2011 security zones” is available via http://www.regulations.gov in docket USCG-2011-0800. It provides a graphical representation of the four security zones discussed above that are established by this temporary interim rule.

In accordance with the general regulations in 33 CFR part 165, subpart D, no person or vessel will be permitted to transit into or remain in the zone except for those authorized support vessels, aircraft and support personnel, or other personnel or vessels authorized by the Captain of the Port or the District Commander. Any Coast Guard commissioned, warrant, or petty officer, or other Captain of the Port representative permitted by law, may enforce the zone. Vessels, aircraft, or persons in violation of this rule will be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

We did not publish a notice of proposed rulemaking (NPRM) for this temporary interim rule. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Due to the sensitive nature of this highly visible event, sufficient notice of the zone locations was not released in time to adequately complete the NPRM rulemaking. This event is a matter of national security and the changing nature of the event has required flexibility among all parties. Issuing an NPRM is impracticable due to the nature of the event. This temporary interim rule, however, is being used to provide a post-promulgation comment period in advance of the event given the limited time remaining. It would be contrary to the public interest to delay issuing an effective rule. Post-promulgation comments received on this temporary interim rule may allow the COTP to issue an improved temporary final rule, but issuing the interim rule now ensures that an effective rule will be in place to provide the necessary security measures required for the Asia-Pacific Economic Cooperation conference held on Oahu.

We developed this temporary interim rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This conclusion is based on the limited duration of the zone and the limited geographic area affected by it. Furthermore, the general public will be permitted to transit the security zone as necessary but will not be permitted to loiter.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this temporary interim rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this temporary interim rule will not have a significant economic impact on a substantial number of small entities.

This temporary interim rule could affect the following entities, some of which might be small entities: the owners or operators of vessels for hire intending to transit or operate in the Ala Wai Harbor and Canal and West Waikiki Security Zones from November 9, 2011 to November 16, 2011; the owners or operators of vessels for hire intending to transit or operate in the East Waikiki Security Zone on November 12, 2011; and the owners or operators of vessels for hire intending to transit or operate in the Ko'olina Security Zone on November 13, 2011.

These security zones will not have a significant economic impact on a substantial number of small entities for the following reasons: The security zones will be activated and thus subject to enforcement for a period of no longer than seven (7) days and will not affect vessels transiting 1500 yards (or more) offshore from the Sheraton Waikiki to 1500 yards south-southwest from the Ala Wai Harbor breakwater. It also will not affect vessels transiting or operating outside 1500 yards west from Kahe Point Beach Park to 1500 yards southwest from Barbers Point Harbor Channel, not including the entrance to Barbers Point Harbor.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule will economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this temporary interim rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Scott O. Whaley at (808) 522-8264 ext. 352. The Coast Guard will not retaliate against small entities that question or complain about this temporary interim rule or any policy or action of the Coast Guard.

This temporary interim rule will call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this temporary interim rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this temporary interim rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This temporary interim rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This temporary interim rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this temporary interim rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children.

This temporary interim rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this temporary interim rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This temporary interim rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this temporary interim rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this temporary interim rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001 et seq.; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

This document announces that, on July 20, 2011, OMB approved, for a period of three years, the information collection requirements contained in the Commission's Order, FCC 11-92, published at 76 FR 43206, July 20, 2011. The OMB Control Number is 3060-1142. The Commission publishes this notice as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street, SW., Washington, DC 20554. Please include the OMB Control Number, 3060-1142, in your correspondence. The Commission will also accept your comments via e-mail at PRA@fcc.gov.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on July 20, 2011, for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR parts 61 and 64.

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1142.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1142.

OMB Approval Date: July 20, 2011.

OMB Expiration Date: September 30, 2013.

Title: Electronic Tariff Filing System, WC Docket No. 10-141.

Form Number: N/A.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 1,500 respondents; 1,500 responses.

Estimated Time per Response: 1 hour.

Frequency of Response: Annual and on-occasion reporting requirements.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this information collection is found at sections 1, 2, 4(i), 201-205, and 226(h)(1)(A) of the Communications Act of 1934, as amended (Act), 47 U.S.C. 151, 152, 154(i), 201-205, and 226(h)(1)(A).

Total Annual Burden: 1,500 hours.

Total Annual Cost: $1,222,500.

Nature and Extent of Confidentiality: An assurance of confidentiality is not offered because this information collection does not require the collection of personally identifiable information (PII) from individuals.

Needs and Uses: In this document, the Federal Communications Commission (Commission) adopts rule revisions enabling all tariff filers to file tariffs electronically over the Internet, using the Electronic Tariff Filing System (ETFS). Additionally, the Commission clarifies and makes more consistent certain technical rules related to tariff filings. The Commission concludes that it is appropriate to apply the same electronic filing requirements to all tariff filers and expands the applicability of the Commission's rules to include all tariff filers. The Commission also concludes that the Commission's rules, which require specific formatting and composition of tariffs, will now apply to all tariff filers. The Chief of the Wireline Competition Bureau will be responsible for administering the adoption of electronic tariff filing requirements for all tariff filers.

The Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq. ) is a law that was passed to prevent extinction of species by providing measures to help alleviate the loss of species and their habitats. Before a plant or animal species can receive the protection provided by the Act, it must first be added to the Federal Lists of Threatened and Endangered Wildlife and Plants; section 4 of the Act and its implementing regulations at 50 CFR part 424 set forth the procedures for adding species to these lists. We published a proposed rule (75 FR 54561) to list the Ozark Hellbender ( Cryptobranchus alleganiensis bishopi ) as endangered under the Endangered Species Act, as amended (Act; 16 U.S.C. 1531 et seq. ) on September 8, 2010, with a 60-day public comment period.

Federal actions for this species prior to September 8, 2010, are outlined in our proposed rule for this action (75 FR 54561). We implemented the Service's peer review process and opened a 60-day comment period to solicit scientific and commercial information on the species from all interested parties following publication of the proposed rule. Because collection for trade is considered a primary threat, we coordinated with our Division of Management Authority to develop, concurrent with that proposal, a proposal to list the Ozark Hellbender as well as the Eastern Hellbender in Appendix III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (75 FR 54579). The final rule for the CITES Appendix III listing is being published concurrently in today's Federal Register .

The Ozark Hellbender is a large, strictly aquatic salamander endemic to streams of the Ozark Plateau in southern Missouri and northern Arkansas. Its dorso-ventrally flattened body form enables movements in the fast-flowing streams it inhabits (Nickerson and Mays 1973a, p. 1). Ozark Hellbenders have a large, keeled tail and tiny eyes. An adult may attain a total length of 11.4 to 22.4 inches (in) (29 to 57 centimeters (cm)) (Dundee and Dundee 1965, pp. 369-370; Johnson 2000, p. 41). Numerous fleshy folds along the sides of the body provide surface area for respiration (Nickerson and Mays 1973a, pp. 26-28) and obscure their poorly developed costal grooves (grooves in the inner border of the ribs; Dundee 1971, p. 101.1). Ozark Hellbenders are distinguishable from Eastern Hellbenders ( Cryptobranchus alleganiensis alleganiensis ) by their smaller body size, dorsal blotches, increased skin mottling, heavily pigmented lower lip, smooth surfaced lateral line system, and reduced spiracular openings (openings where water is expelled out of the body) (Grobman 1943, p. 6; Dundee 1971, p. 101.3; Peterson et al. 1983, pp. 227-231; LaClaire 1993, pp. 1-2). Despite these distinguishing characteristics, the two subspecies are not easily or readily distinguishable absent the presence of both subspecies or when encountered outside of their subspecies' range.

The Ozark Hellbender was originally described as Cryptobranchus bishopi by Grobman (1943, pp. 6-9) from a specimen collected from the Current River in Carter County, Missouri. Based on the slight morphological and ecological variation within the genus Cryptobranchus, Dundee and Dundee (1965, pp. 369-370) determined subspecific status for Ozark and Eastern hellbenders as within the hellbender, C. alleganiensis complex sensu lato (which means, “in the broad sense” and is used when two subspecies are derived from a single species within a broader context). Subsequent genetic analyses by Merkle et al. (1977, pp. 550-552) and Shaffer and Breden (1989, pp. 1017-1022) supported the classification of the Ozark and Eastern hellbender as subspecies. In 1991 Collins (1991, pp. 42-43) attempted to revive the designation of C. bishopi, due to the lack of intergradation between the Eastern and Ozark Hellbenders, primarily a result of the taxa occurring in separate, nonoverlapping geographic areas (Dundee 1971, p. 101.1). However, despite some phenotypic and genetic differences between Ozark and Eastern hellbenders (Grobman 1943, pp. 6-9; Dundee and Dundee 1965, p. 370; Dundee 1971, p. 101.1; Routman 1993, pp. 410-415; Kucuktas et al. 2001, p. 127), the suggestion to elevate Ozark and Eastern hellbenders to species status was never accepted by other taxonomists (Crother et al. 2008, p. 15). We will continue to use the nomenclature C. a. bishopi for the Ozark Hellbender, which is the taxonomy currently recognized by the Committee on Standard English and Scientific Names (Crother et al. 2008, p. 15). Although discussion continues over the taxonomic status of the Ozark Hellbender, the designation of the Ozark Hellbender as a species or subspecies does not affect its qualification for listing under the Act (16 U.S.C. 1531 et seq. ).

Eastern and Ozark hellbenders are similar in habitat selection, movement, and reproductive biology (Nickerson and Mays 1973a, pp. 44-55). Published works on the Eastern Hellbender provide insights into Ozark Hellbender ecology. Adult Ozark Hellbenders are frequently found beneath large rocks, typically limestone or dolomite, and in moderate to deep (less than 3 feet (ft) to 9.8 ft (less than 1 meter (m) to 3 m)), rocky, fast-flowing streams in the Ozark Plateau (Johnson 2000, p. 42; Fobes and Wilkinson 1995, pp. 5-7). In spring-fed streams, Ozark Hellbenders will often concentrate downstream of the spring, where there is little water temperature change throughout the year (Dundee and Dundee 1965, p. 370). Adults are nocturnal, remaining beneath cover during the day and emerging to forage at night, primarily on crayfish. They are diurnal during the breeding season (Nickerson and Mays 1973a, pp. 40-41; Noeske and Nickerson 1979, pp. 92, 94). Ozark Hellbenders are territorial and will defend occupied cover from other hellbenders (Nickerson and Mays 1973a, pp. 42-43). This species migrates little throughout its life. For example, one tagging study revealed that 70 percent of marked individuals moved less than 100 ft (30 m) from the site of original capture (Nickerson and Mays 1973b, p. 1165). Home ranges average 91.9 square (sq) ft (28 sq m) for females and 265.7 sq ft (81 sq m) for males (Peterson and Wilkinson 1996, p. 126).

Hellbenders are habitat specialists that depend on consistent levels of dissolved oxygen, temperature, and flow (Williams et al. 1981, p. 97). The lower dissolved-oxygen levels found in warm or standing water do not provide for the hellbender's respiratory needs. In fact, hellbenders have been observed rocking or swaying in still, warm water (Williams et al. 1981, p. 97) to increase their exposure to oxygen. Hutchison and Hill (1976, p. 327) found that the hellbender exhibits a preferred mean water temperature of 52.9 °F (11.6 °C), 63.9 °F (17.7 °C), and 71.1 °F (21.7 °C) for individuals acclimatized to temperatures of 41 °F (5 °C), 59 °F (15 °C), and 77 °F (25 °C), respectively. Hutchison et al. (1973, p. 807) found the mean critical thermal maxima (the temperature at which animals lose their organized locomotory ability and are unable to escape from conditions that would promptly lead to their death) of Ozark Hellbenders was 90.9 °F (32.7 °C) at 41 °F (5 °C) acclimation, 91.2 °F (32.9 °C) at 59 °F (15 °C), and 97.7 °F (36.5 °C) at 77° F (25 °C).

Hellbenders are long-lived, capable of living 25 to 30 years in the wild (Peterson et al. 1983, p. 228). Hellbenders may live up to 29 years in captivity (Nigrelli 1954, p. 297). Individuals mature sexually at 5 to 8 years of age (Bishop 1941, pp. 49-50; Dundee and Dundee 1965, p. 370), and males normally mature at a smaller size and younger age than females. Female hellbenders are reported to be sexually mature at a total length of 14.6 to 15.4 in (37 to 39 cm), or at an age of approximately 6 to 8 years (Nickerson and Mayes 1973a, p. 54; Peterson et al. 1983, p. 229; Taber et al. 1975, p. 638). Male hellbenders have been reported to reach sexual maturity at a total length of 11.8 in (30 cm), or at an age of approximately 5 years (Taber et al. 1975, p. 638).

Breeding generally occurs between mid-September and early October (Johnson 2000, p. 42). Males prepare nests beneath large flat rocks or submerged logs. Ozark Hellbenders mate via external fertilization, and males will guard the fertilized eggs from predation by other hellbenders (Nickerson and Mays 1973a, pp. 42, 48). Clutch sizes vary from 138 to 450 eggs per nest (Dundee and Dundee 1965, p. 369), and eggs hatch after approximately 80 days (Bishop 1941, p. 47). Larvae and small individuals hide beneath small stones in gravel beds or under large rocks, similar to those occupied by adults (Nickerson and Mays 1973a, p. 12; LaClaire 1993, p. 2). Although there is little information on the diet of larval hellbenders, it is generally believed that aquatic insects comprise their primary food source. In one of the few studies on larval diet, Pitt and Nickerson (2006, p. 69) found that the stomach of a larval Eastern Hellbender from the Little River in Tennessee exclusively contained aquatic insects.

During or shortly after eggs are laid, males and females may prey upon their own and other individuals' clutches. Most hellbenders examined during the breeding season contain between 15 and 25 eggs in their stomachs (Smith 1907, p. 26). Males frequently regurgitate eggs (King 1939, p. 548; Pfingsten 1990, p. 49), and females sometimes eat their own eggs while ovipositing (laying) them (Nickerson and Mays 1973a, p. 46). Topping and Ingersol (1981, p. 875) found that up to 24 percent of the gravid (egg-bearing) females examined from the Niangua River in Missouri retained their eggs and eventually reabsorbed them.

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). Currently, populations of Ozark Hellbenders are known to occur in the North Fork of the White River, the Eleven Point River, and the Current River.

The other subspecies of hellbender, the Eastern Hellbender, occurs in central and eastern Missouri (in portions of the Missouri drainage in south-central Missouri and the Meramec (Mississippi drainage)), but its range does not overlap with that of the Ozark Hellbender. The Eastern Hellbender's range extends eastward to New York, Georgia, and the States in between.

Evidence indicates Ozark Hellbenders are declining throughout their range (Wheeler et al. 2003, pp. 153, 155), and no populations appear to be stable.

At the request of the Saint Louis Zoo's Wildcare Institute, the Conservation Breeding Specialist Group (CBSG) facilitated a Population and Habitat Viability Analysis (PHVA) for Ozark and Eastern Hellbenders in August 2006. Thirty workshop participants explored threats to hellbender populations and developed management actions aimed at understanding and halting their decline. Using the software program Vortex (v9.61), the CBSG team prepared and presented a baseline model for hellbender populations and worked through the input parameters with the participants to optimize the model and determine current and projected mean population sizes for all current populations in 75 years (Briggler et al. 2007, pp. 8, 80-86). The results of the model are presented in the river-specific population accounts below.

A description of what we know about Ozark Hellbender populations follows, including current population estimates from the hellbender PHVA (Briggler et al. 2007, pp. 83-84).

White River—There are only two Ozark Hellbender records from the main stem of the White River. In 1997, an Ozark Hellbender was recorded in Baxter County, Arkansas (Irwin 2008a, pers. comm.). No hellbenders were found during a 2001 survey of the lower portion of the White River, but in 2003, an angler caught a specimen in Independence County, Arkansas (Irwin 2008a, pers. comm.). We do not know whether a viable population exists (or whether hellbenders are able to exist) in the main stem of the White River or if the individuals captured are members of a relic population that was separated from the North Fork White River population by Norfork Reservoir. Much of the potentially occupied hellbender habitat was destroyed by the series of dams constructed in the 1940s and 1950s on the upper White River, including Beaver, Table Rock, Bull Shoals, and Norfork Reservoirs.

North Fork White River—The North Fork White River (North Fork) historically contained a considerable Ozark Hellbender population. In 1973, results of a mark-recapture study indicated that there were approximately 1,150 hellbenders within a 1.7-mile (mi) (2.7-kilometer (km)) reach of the North Fork in Ozark County, Missouri, with an estimated density of one individual per 26.2 to 32.8 sq ft (8 to 10 sq m; Nickerson and Mays 1973b, p. 1165). Ten years later, hellbender density in a 2.9-mi (4.6-km) section of the North Fork in the same county remained high, with estimated densities between one per 19.7 sq ft (6 sq m) and one per 52.5 sq ft (16 sq m; Peterson et al. 1983, p. 230). Individuals caught in this study also represented a range of lengths from 6.8 to 21.7 in (172 to 551 millimeters (mm)), indicating that reproduction was occurring in this population, and most individuals measured between 9.8 and 17.7 in (250 and 449 mm). In a 1992 qualitative study in Ozark County, Missouri, 122 hellbenders were caught during 49 person-hours of searching the North Fork (Ziehmer and Johnson 1992, p. 2). Those individuals ranged in length from 10 to 18 in (254 to 457 mm), and no average length was included in that publication.

Until the 1992 study, the North Fork population appeared to be relatively healthy. However, in a 1998 study of the same reach of river that was censused in 1983 (Peterson et al. 1983, pp. 225-231) and that used the same collection methods, only 50 hellbenders were captured (Wheeler et al. 1999, p. 18). These individuals ranged in length from 7.9 to 20.0 in (200 to 507 mm), with most measuring between 15.7 and 19.7 in (400 and 500 mm), and the average length was significantly greater than the average length of those collected 20 years earlier (Wheeler 1999, p. 15). This shift in length distribution was not a result of an increase in maximum length of individuals; instead, there were fewer individuals collected in the smaller size classes.

As a way to compare relative abundance of hellbenders in the late 1990s to historic numbers, Wheeler et al. (2003, pp.152-153) obtained raw data used in the Peterson et al. (1983) study to calculate numbers of individuals caught per day. Other Ozark Hellbender population studies not included in that conversion are converted here for further comparison of relative abundance between historic and more recent studies (Ziehmer and Johnson 1992, pp. 1-5). For comparison purposes, one search day is defined as 8 hours of searching by 3 people (or 24 person-hours). However, converting person-hours to a search day metric may underestimate actual search effort and overestimate relative hellbender abundance as person-hours usually only include time spent in the water searching (as opposed to total number of hours spent on the river). It should also be noted that because search effort was not standardized among all studies, comparison of hellbender captures per search day is a general, rather than a quantitative, comparison. Using this metric for the North Fork, approximately 55 hellbenders were caught per search day in 1983 (Peterson et al. 1983, pp. 225-231). In 1992, 60 hellbenders per search day were caught (Ziehmer and Johnson 1992, p. 2), and in 1998, 17 hellbenders per search day were caught (Wheeler 2003, p. 153).

Another comparison of Ozark Hellbenders captures between historic and recent years provides further evidence of a decline. A 16.2-mi (25-km) section of stream in the North Fork (overlapping with some sites sampled in the previous studies) was surveyed during 1969-1979 and again during 2005-2006 (Nickerson and Briggler 2007, pp. 212-213). Between 1969 and 1979, researchers caught 8 to 12 hellbenders per hour (64 to 96 hellbenders per search day); whereas in 2005 and 2006 researchers averaged 0.5 hellbenders per hour (4 hellbenders per search day) (Nickerson and Briggler 2007, p. 213).

In 2006, hellbender experts estimated the current population in the North Fork to be 200 individuals (Briggler et al. 2007, p. 83). The North Fork had been considered the stronghold of the species in Missouri, and the populations inhabiting this river were considered stable by Ziehmer and Johnson (1992, p. 3) and LaClaire (1993, pp. 3-4). However, the studies cited above indicate that these populations now appear to be experiencing declines similar to those in other streams. The collection of young individuals has become rare, indicating that there is little recruitment. Although Briggler (2011c, pers. comm.) occasionally found some younger hellbenders in this river during surveys between 2005 and 2010, no larvae have been found despite extensive effort. In species such as the hellbender, which are long lived and mature at a relatively late age, detecting declines related to insufficient recruitment can take many years, as recruitment under healthy population conditions is typically low (Nickerson and Mays 1973a, p. 54). Based on the comparisons of relative abundance and lack of observed recruitment, it appears that a severe decline has occurred in the North Fork.

Bryant Creek— Bryant Creek is a tributary of the North Fork in Ozark County, Missouri, which flows into Norfork Reservoir. Ziehmer and Johnson (1992, p. 2) expected to find Ozark Hellbenders in this stream during an initial survey, but none were captured or observed after 22 person-hours (0.9 search days). This apparent absence of the species conflicted with previous reports from Missouri Department of Conservation (MDC) personnel and an angler who reported observations of fairly high numbers of hellbenders in Bryant Creek during the winter months (Ziehmer and Johnson 1992, p. 3). A subsequent survey of the creek resulted in the capture of six hellbenders (Wheeler et al. 1999, p. 7) and confirmed the existence of a population in this tributary, at least through 1998. This population, however, is isolated from the other North Fork White River populations by the Norfork Reservoir, which could contribute to this population's apparent small size due to fragmentation of habitat. During MDC surveys conducted in 2007, no individuals were found in areas where the six individuals were found in 1998. However, five individuals were found in areas of Bryant Creek that were not surveyed in 1998. This population has been historically low and is not considered to be viable (Briggler 2008b, pers. comm.).

Black River—There is one documented record of an Ozark Hellbender in the Black River above its confluence with the Strawberry River on the Independence-Jackson County line (Arkansas) in 1978 (Irwin 2008a, pers. comm.). Portions of the Black River in Missouri were surveyed in 1999 by researchers at Arkansas State University, but no hellbenders were observed (Wheeler et al. 1999, p. 18). Currently, the Black River does not appear to have conditions suitable for Ozark Hellbenders, although it may have been occupied before intensive agriculture was initiated in the area (Irwin 2008b, pers. comm.). The Black River is presumed to be part of the historical range of the subspecies, because Ozark Hellbenders have been documented in several of its tributaries, including the Spring, Current, and Eleven Point rivers (Firschein 1951, p. 456; Trauth et al. 1992, p. 83). In 2004, MDC surveyed areas in Missouri that had been searched in 1999 (Wheeler et al. 1999, p. 18), as well as areas not searched in 1999 that had anecdotal reports of hellbenders. No hellbenders were found during this 2-day survey. The habitat was considered less than ideal because it was predominantly composed of igneous rocks, which lack the cracks and crevices necessary for hellbender inhabitance. Parts of the Black River, with suitable dolomite rock, might have contained a small population at one time (Briggler 2008b, pers. comm.).

Spring River—The Spring River, a tributary of the Black River, flows from Oregon County, Missouri, south into Arkansas. Ozark Hellbender populations have been found in the Spring River near Mammoth Spring in Fulton County, Arkansas (LaClaire 1993, p. 3). In the early 1980s, 370 individuals were captured during a mark-recapture study along 4.4-mi (7-km) of stream south of Mammoth Spring (Peterson et al. 1988, p. 293). Hellbender density at each of the two surveyed sites was fairly high (approximately one per 75.5 square (sq) ft (23 sq m) and one per 364 sq ft (111 sq m), respectively). These individuals were considerably larger than hellbenders captured from other streams during the same time period, with 74 percent of Spring River hellbenders having a total length of more than 17.7 in (450 mm), with a maximum length of 23.6 in (600 mm) (Peterson et al. 1988, p. 294). Although other factors may be involved in the observed length differences, it has been hypothesized that Spring River populations are genetically distinct from other hellbender populations. This speculation was upheld by the conclusions of a genetic study of the populations in the Spring, Current, and Eleven Point rivers (Kucuktas et al. 2001, pp. 131-135). In 1991, surveyors searched 10 sites for hellbenders along a 16.2-mi (26-km) stream reach but observed only 20 individuals during 41 person-hours (11.7 hellbenders per search day) over a 6-month period (Trauth et al. 1992, pp. 84-85). This 6-month survey included the two sites surveyed in the early to mid-1980s in which surveyors captured 370 hellbenders, along with eight additional sites upstream and downstream (Peterson et al. 1988, pp. 291-303; Trauth et al. 1992, p. 83). No size class information is available, although the large sizes of captures reported in Peterson et al. (1988, p. 294) may be indicative of a population experiencing little recruitment.

Researchers with Arkansas State University surveyed the Spring River from autumn 2003 through winter 2004, performing 74 hours of search effort and found only 12 Ozark Hellbenders (3.9 hellbenders per search day) (Hiler 2005, p. 186). Nine of these animals exhibited severe physical abnormalities and were removed from the river to be housed at the Mammoth Spring National Fish Hatchery but have since died. All nine have since died, however, possibly due to water quality issues at the hatchery or from health issues that were observed when they were captured ( i.e., lesions, raw limbs). Arkansas State University researchers found four and one individual during 2005 and 2006 surveys, respectively. Hellbenders have declined in this stream from unknown causes. Possible reasons for the decline include water quality degradation, aquatic vegetation encroachment, collection for scientific purposes, and illegal commercial collection (Irwin 2008b, pers. comm.). Experts estimated the population in the Spring River to be at most 10 individuals, considered the population in this river to be functionally extirpated, and considered there to be minimal possibility of this stream being reinhabited under present conditions because of the magnitude of habitat degradation (Briggler et al. 2007, p. 83; Irwin 2008b, pers. comm.).

Eleven Point River—The Eleven Point River, a tributary of the Black River that occurs in Missouri and Arkansas, has been surveyed several times since the 1970s. Wheeler (1999, p. 10) analyzed historical data and reported that in 1978, 87 Ozark Hellbenders were captured in Oregon County, Missouri, over a 3-day period, yielding an average of 29 hellbenders per search day. From 1980 to 1982, 314 hellbenders were captured in the same area in 9 collection days, yielding an average of 35 hellbenders per search day; hellbender body lengths over that period ranged from 4.7 to 17.8 in (119 to 451 mm) (Wheeler 1999, p. 10). In 1988, Peterson et al. (1988, p. 293) captured 211 hellbenders from the Eleven Point River and estimated hellbender density to be approximately one per 65.6 sq ft (20 sq m). Total lengths of these individuals ranged from 4.7 to 17.7 in (120 to 450 mm), with most between 9.8 and 13.8 in (250 and 350 mm). The average number of hellbenders captured per hour was 8.4 and 8.8 for the two sites sampled, or 67 and 70 hellbenders captured per search day (using the search day conversion method presented in the North Fork White River discussion). As noted previously, the abundance of hellbenders per search day is likely an overestimate, and may be better approximated as 35-40 hellbenders per search day since the reported capture rates do not appear to be relative to the number of surveyors.

In 1998, Wheeler (1999, p. 10) captured 36 Ozark Hellbenders over 4 days from the same localities as Peterson et al. (1988, p. 292), for an average of nine hellbenders per search day. These hellbenders were larger than those captured previously, with total lengths of 12.8 to 18.0 in (324 to 457 mm), and there were considerably fewer individuals in the smaller size classes. For comparison, a survey of localities in 2005 by Peterson et al. (1988, p. 293) resulted in a total of 31 hellbenders captured and yielded an average of 2.6 hellbenders captured per search day. Population declines and reduced recruitment in the Eleven Point River in Missouri are indicated by the results of survey data (Briggler 2011b, pers. comm.), although hellbenders are consistently reported during surveys in the Eleven Point River in Arkansas (Irwin 2011a, pers. comm.).

Recently in Arkansas (2005 and 2007), however, no more than two or three individuals were caught per search day. Specifically, the catch per person-hour in 2005 was 1.1 hellbenders and in 2007 the capture rate was 0.9 hellbenders per person-hour for surveys conducted on the Eleven Point River in Arkansas (Irwin 2008a, pers. comm.). In 2006, hellbender experts estimated the current Eleven Point River population to be 200 individuals in Arkansas and 100 individuals in Missouri (Briggler et al. 2007, p. 83).

Current River—The Current River was not surveyed extensively until the 1990s. Nickerson and Mays (1973a, p. 63) reported a large Ozark Hellbender population in this stream, but no numbers were recorded. In 1992, Ziehmer and Johnson (1992, p. 2) found 12 hellbenders in 60 person-hours in Shannon County, Missouri, or approximately 5 hellbenders per search day (using the same search day conversion as presented in the North Fork White River discussion). These individuals ranged in length from 4.5 in (115 mm) to more than 15.0 in (380 mm; maximum length was not reported), with most between 13.0 and 15.0 in (330 and 380 mm). In 1999, 14 hellbenders were collected over 3 collection days (approximately 5 hellbenders per search day), also in Shannon County, Missouri, and the individuals ranged from 14.8 to 20.3 in (375 to 515 mm) in length, with most between 17.7 to 19.7 in (450 to 499 mm) (Wheeler 1999, p. 12). The average size of individuals increased by nearly 4 in (100 mm), and the reported increase in length suggests that recruitment may be absent in this population. In 2005 and 2006, researchers found 22 hellbenders throughout the Current River in 100 hours of searching (equivalent to 5.2 hellbenders per search day). In 2006, hellbender experts estimated the current population in the Current River to be 80 individuals (Briggler et al. 2007, p. 83).

Jacks Fork—Jacks Fork, a tributary of the Current River, was initially surveyed for Ozark Hellbenders in 1992 (Ziehmer and Johnson 1992, p. 2). Four hellbenders were collected over 66 person-hours, equating to roughly 1.5 hellbenders per search day. The individuals were large, ranging from 13.0 to 16.9 in (330 to 430 mm) in length. No hellbenders were found during investigations of Jacks Fork in 2003 nor were any found in 2006 during 7 person-hours of searching (Phillips 2010, pers. comm.).

In the proposed rule published on September 8, 2010 (75 FR 54561), we requested that all interested parties submit written comments on the proposal by November 8, 2010. We also contacted appropriate Federal, State, and local agencies; scientific experts; and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general comments were published in the West Plains Daily Quill (West Plains, Missouri), The Times Dispatch (Walnut Ridge, Arkansas), and The News-Leader (Springfield, Missouri). We did not receive any requests for a public hearing.

Between October 21, 2010, and October 28, 2010, the Service received five requests to extend the public comment period for an additional 90 days. The reasons for requesting an extension centered on the Service's proposed determination that it was not prudent to designate critical habitat for the Ozark Hellbender. While the requests cited complexities of the issues involved and concerns regarding the water quality in the streams as the basis for an extension, no new information was provided that was not already outlined in the proposed rule. Therefore, we did not extend the public comment period and further delay the listing. We did, however, host a conference call with the requesters to provide information and answer questions regarding the Service's proposal.

We received 65 written comments, including comments from 3 peer reviewers. Fifty-seven comments supported the proposed listing; while six comments expressed neither support for, nor opposition to, the proposal. Eight comments supported a “similarity of appearance” listing for the Eastern Hellbender, with three commenters also supporting a separate listing for the Eastern Hellbender.

We reviewed all comments we received from the public and peer reviewers for substantive issues and new information regarding the listing of the Ozark Hellbender. All substantive information provided during the comment period has either been incorporated into this final determination or is addressed below.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from three individuals with scientific expertise that included familiarity with the species and its habitat, the geographic region in which the species occurs, and conservation biology principles. We received responses from all three peer reviewers from whom we requested comments. The peer reviewers generally agreed that the description of the biology and habitat for the species was accurate and based on the best available information. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate. New and additional information on the biology of the species and its threats was provided and incorporated into the rulemaking as appropriate. In some cases, it has been indicated in the citations by “personal communication” (pers. comm.); while in other cases, the research citation is provided.

(1) Comment: In the proposed listing, the Service states that Dundee and Dundee (1965) recommended changing the taxonomic status of the Ozark Hellbender from species to subspecies due to the small amount of genetic variation between Ozark and Eastern Hellbenders. Dundee and Dundee (1965) recommended changing the taxonomic status based on morphology and ecology, not genetic variation.

Our Response: We corrected this statement and clarified the remaining section on taxonomy to reflect that subsequent genetic analyses further supported the subspecies designation by Dundee and Dundee (1965).

(2) Comment: The pathogen Batrachochytrium dendrobatidis has now been confirmed in all continents, including Asia (Goka et al. 2009).

Our Response: We reviewed the reference provided by the peer reviewer and have made the correction in this final rule to reflect the entire range of this pathogen.

(3) Comment: Two peer reviewers provided comments regarding the reference in the proposed rule to Pfingsten's (1990) caution that the failure to detect larvae could be interpreted to mean that larvae could occur in areas not surveyed. One peer reviewer relayed that two Eastern Hellbender larvae had been captured in Ohio in habitat similar to that occupied by adults. The peer reviewer also commented that a “retrospective” analysis of the data collected by Pfingsten for Eastern Hellbender populations in Ohio provides strong evidence that the lack of detection of a younger size class ( i.e. larvae) was due to the lack of recruitment in most Ohio populations rather than Pfingsten's failure to survey sites occupied by larvae (Lipps 2010, pers. comm.). The peer reviewer suggested that a similar situation or phenomenon was likely responsible for the lack of recruitment in Ozark Hellbender populations (Lipps 2010, pers. comm.). A second peer reviewer provided two arguments supporting the explanation that lack of larvae detection in surveys is due to an actual lack of recruitment and not survey technique. He noted that researchers have searched in several microhabitats (for example, gravel beds, smaller tributaries) in excess of 100 person-hours without detecting the presence of larvae, and that others have found larvae and juveniles of the Eastern Hellbender in the same microhabitats as adults.

Our Response: We concur that the inability to detect larval and juvenile hellbenders is not solely a function of survey technique but most likely reflects an actual reduction or lack of recruitment in the populations. Information provided by the peer reviewers and other supporting references have been incorporated into this final rule.

(4) Comment: The Service should consider listing pesticides as a potential direct threat to the Ozark Hellbender. The peer reviewer supports this recommendation with several references, including statements in the proposed rule indicating that hellbenders would be vulnerable to multiple chemicals. The peer reviewer also states that pesticide registration and usage is listed as a potential Federal agency action that may require conference or consultation under Available Conservation Measures.

Our Response: In testing water samples collected from the North Fork, White, and Eleven Point rivers from 2003-2004, Solis et al. (2007; pp. 430,432) detected only two pesticides: metolachlor and tebuthiuron. Median concentrations of both chemicals were lower than median concentrations detected from 1992-1995 at various sites throughout the Ozark Plateau (Petersen et al. 1998; p. 24). Metolachlor and tebuthiuron concentrations in 2003-2004 were also lower than the Environmental Protection Agency (EPA) aquatic life benchmarks for the protection of aquatic species (U.S. EPA 2011). Atrazine, which can interfere with normal gonadal development and adversely affect fertility (PARC 2007), was not detected in water samples collected during 2003 and 2004 (Solis et al. 2007; pp. 430, 432). While it is possible that atrazine may be present at concentrations below detectable limits and thus potentially affect hellbenders, available data do not support the recommendation that pesticides are a direct threat.

(5) Comment: The Service states in the proposed rule that predation by introduced trout cannot be ruled out as a factor affecting the Ozark Hellbender and that it possibly contributes to the observed population declines. However, nonnative fish stocking is not included in the actions that would be reviewable under section 7(a)(2) of the Act or under actions that may require consultation with the Service. The Service should clarify if they lack the authority to review fish stocking in Ozark Hellbender habitat or explain why this action is not included.

Our Response: Section 7(a)(2) of the Act requires that each Federal agency insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. If an agency receives Federal funding for stocking nonnative fish (such as from the Service's Wildlife and Sport Fish Restoration Program), or if this action is authorized by a Federal agency, the Service would work closely with our partners during the section 7(a)(2) consultation process to assess impacts to Ozark Hellbenders and avoid or minimize these impacts. In the proposed rule we provided a limited list of agency actions that may require conference or consultation for the Ozark Hellbender (see Available Conservation Measures). We have modified the list to also include federally funded activities. Because federally funded or authorized activities can include numerous actions, we did not provide a comprehensive list of all actions that may require section 7 consultation.

(6) Comment: One reviewer interpreted the Service's “not prudent” finding to indicate that the Service has determined that sections 7(a)(1) and 7(a)(2) of the Act can sufficiently contribute to the conservation and recovery of the Ozark Hellbender without protecting areas outside the geographical area occupied at the time of listing (through designation of critical habitat). The reviewer requested that the Service explain how we will protect areas outside the currently occupied locations if those areas are considered essential to the recovery of the species and critical habitat is not designated.

Our Response: As detailed under Benefits to the Species from Critical Habitat Designation, the Service recognizes that in some instances the designation of critical habitat can provide additional protection beyond that which is already provided through the section 7(a)(2) consultation process (see response to Comment 13a for additional information). One of these benefits is the protection of unoccupied habitat considered essential to the recovery of the species. It is necessary, however, to weigh this benefit against the increased threat of illegal collection to the taxa by designating critical habitat. In doing so, the Service believes that the conservation and recovery of Ozark Hellbenders can best be achieved by preventing the illegal removal of animals from the populations, a threat directly resulting from the publication of critical habitat maps and disclosure of specific locations of occupied sites.

(7) Comment: The Service includes “flipping large rocks within streams” as an action likely to result in violation of section 9 of the Act. Moving shelter rocks used by hellbenders, even when returned to their original side down, may make the space beneath the rock unsuitable for hellbenders (personal observation by peer reviewer). Despite taking great effort to return rocks to their original positions, disturbing the “seal” of sedimentation around hellbender shelter rocks may result in the space being abandoned by hellbenders and becoming occupied by rock bass and other fish, thereby reducing the amount of suitable habitat available for hellbenders (Horchler 2010, p. 20). The Service should replace the word “flipping” with “disturbing.” Furthermore, under 50 CFR 17.21 and 17.31, it is illegal to pursue or attempt to pursue an endangered species and this language should be included in the list of likely violations of section 9.

Our Response: Manipulation of shelter rocks to locate or capture hellbenders would in most cases be in the form of flipping (overturning) rocks. However, within the context of unauthorized destruction or alteration of hellbender habitat (for reasons other than to locate hellbenders), the microhabitat under or around the rock may be altered by disturbances other than just flipping. Therefore, we have replaced the word “flipping” with “disturbing.” In response to the second part of the peer reviewer's comment, in this final rule, we have specifically identified “pursuing, or attempting to pursue” within those actions likely to result in a violation of section 9.

(8) Comment: One reviewer noted that many of the factors potentially contributing to hellbender declines may be operating synergistically to reduce survival. The reviewer provides the following examples: (1) Higher water temperatures due to siltation may lead to an environment favorable for pathogens; (2) poor water quality could contribute to lowered immune capabilities of hellbenders and make them more susceptible to infection from pathogens; and (3) reduced body condition due to water quality issues or pathogen infection could result in individuals becoming more vulnerable to predation (similar linkages with pesticides have been shown in other aquatic amphibians).

Our Response: Although we lack definitive data to support this assertion, it is likely that effects of some factors may enhance the effects of other impacts. Because this interaction could further contribute to the Ozark Hellbender's decline, we have referenced synergistic effects and cumulative effects under Factor E (Other Natural or Manmade Factors Affecting Its Continued Existence).

(9) Comment: Several commenters provided supporting data and information regarding the biology, ecology, life history, population estimates, threat factors affecting the Ozark Hellbender, and current conservation efforts.

Our Response: We thank all of the commenters for their interest in the conservation of this species and thank those commenters who provided information for our consideration in making this listing determination. Much of the information submitted was duplicative of information contained in the proposed rule; however, some comments contained information that provided additional clarity or support to, but did not substantially change, information already contained in the proposed rule. This information has been incorporated into this final rule, where appropriate.

(10) Comment: There was no mention in the proposed rule of other emerging bacterial and viral infections which may cause significant mortality and contribute rangewide to the decline of Ozark Hellbenders. To support this concern, the commenter noted that a flesh-eating bacterium ( Citrobacter sp.) had been identified on an Ozark Hellbender in Missouri, and that symptoms present on the Missouri specimen are present on the majority of hellbenders captured in Arkansas. The commenter also stated that animals infected with Batrachochytrium dendrobatidis (the pathogen which causes amphibian chytrid fungus) may become immunosuppressed and thus more susceptible to these secondary infections.

Our Response: During the development of the proposed rule, factors causing the severe abnormalities observed in Ozark Hellbenders were unknown. Since that time, personnel from the Saint Louis Zoo and other hellbender experts have postulated that the abnormalities are likely caused by secondary bacterial and fungal infections (Briggler 2011a, pers. comm.). Therefore, we have incorporated this information into this final rule under Factor C (Disease or Predation). Although evidence is lacking to conclude that Batrachochytrium dendrobatidis (Bd) suppresses the immune response of animals (and thereby increases their vulnerability to secondary infections), we believe that Bd may be contributing to some of the abnormalities exhibited by hellbenders. Not all hellbenders with abnormalities, such as lesions and appendage loss, however, test positive for infection with Bd (Briggler 2011a, pers. comm.). Therefore, we believe there are factors other than amphibian chytrid fungus that cause increased vulnerability of hellbenders to secondary infections and result in abnormalities.

(11) Comment: The Service needs to further investigate the threat of trout to larval hellbenders.

Our Response: Concern regarding the potential effect of nonnative trout was expressed by multiple commenters. Because nonnative trout are stocked in all rivers that historically and currently contain hellbenders, and because data from Gall (2008, pp. 48-49) indicate that larval Ozark Hellbenders do not recognize trout as predators, we agree that this topic warrants further investigation. Future conservation and recovery efforts for the Ozark Hellbender will include identifying and implementing research projects that will address the role of nonnative trout as a potential factor contributing to the decline of this subspecies. Should results from research studies indicate that nonnative trout are a threat to Ozark Hellbender populations, the Service will work with the States to avoid or minimize these effects.

(12) Comment: Several commenters concurred with the Service's decision not to designate critical habitat, citing the threat posed by illegal collection and the pet trade. However, 12 commenters expressed opposition to the Service's proposed determination not to designate critical habitat for the Ozark Hellbender. These comments generally centered on five main topics and are addressed individually below.

(12a) Comment: The Service cannot protect the Ozark Hellbender without designating critical habitat.

Our Response: Listed species and their habitat are protected by the Endangered Species Act whether or not they are in an area designated as critical habitat. To understand the additional protection that critical habitat may provide to an area, it is necessary to understand the protection afforded to any endangered or threatened species, even if critical habitat is not designated. Section 7(a)(2) of the Act requires Federal agencies to consult with the Service to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat (referred to as the consultation process). In consultations for species with critical habitat, Federal agencies are required to ensure that their activities do not destroy or adversely modify critical habitat. In most instances, particularly in occupied habitat, the species protection benefits provided by the designation of critical habitat largely duplicate those already provided to the species without the designation of critical habitat by the “jeopardy standard.” This is because when the Service evaluates the impacts of activities, we also look at impacts to the species habitat. Despite this overlap, the Service recognizes that, in some instances, designation of critical habitat could provide some benefits to the Ozark Hellbender (as described under Benefits to the Species from Critical Habitat Designation ). These benefits, however, do not outweigh the increased illegal collection that will likely occur if critical habitat maps are published and the specific locations of currently occupied sites are disclosed (see discussion under Increased Threat to the Species Outweighs the Benefits of Critical Habitat Designation).

(12b) Comment: Multiple commenters questioned the degree of threat posed by illegal collection and believed that the publication of critical habitat maps would not increase the risk of unauthorized collection.

Our Response: Although the black market for smuggling and illegally selling protected reptiles and amphibians is widely recognized by herpetofauna experts and law enforcement officials, we realize that it may be necessary to provide additional information to support our concern. Therefore, we provided instances in this final rule under Factor B (Overutilization for Commercial, Recreational, Scientific, or Educational Purposes) to further evidence the threat of illegal collection, including: (1) A testimonial from an individual who collected more than 100 Ozark Hellbenders from the North Fork of the White River in the 1980s to sell for the pet trade; (2) the citation of two individuals in 1985 by Missouri Department of Conservation Agents for illegally collecting Ozark Hellbenders; (3) information referencing the unauthorized removal of more than 100 Ozark Hellbenders from the Spring River in the 1980s, and (4) recent information demonstrating that a demand for hellbenders still exists.

Because Ozark Hellbenders are not uniformly distributed throughout streams in which they occur, collecting is often focused on a known source or site, thereby threatening extirpation of subpopulations at the site. Publication of critical habitat maps would disclose these sites and facilitate removal by collectors.

(12c) Comment: Because only adult hellbenders are subject to illegal collection and larval hellbenders occupy separate habitats from adults, designating critical habitat for all life stages will not increase the threat of illegal collection.

Our Response: The Service is unaware of any reasons for which nonadult Ozark Hellbenders would not be subject to illegal collection or of any information supporting this assertion. The contention that hellbender larvae drift downstream with the current and occupy different habitats than adults was expressed by several commenters who opposed the Service's proposed determination that designating critical habitat for this species is not prudent. We are not aware of information indicating that larval hellbenders drift downstream or that they occupy separate habitats from adults. On the contrary, the best available information indicates that, while larval hellbenders may occupy different microhabitats than adults (interstices of gravel rather than large cover rocks), larvae occupy the same stream reach segments as adults (Bishop 1941, pp. 48, 52; Nickerson and Mays 1973a, p. 12; Nickerson et al. 2003, pp. 624-625, 627; Briggler 2010c, pers. comm.; Horchler 2010, pers. comm.; Lipps 2010, pers. comm.; Phillips 2010, pers. comm.). Therefore, designating critical habitat for all hellbender life stages would not prevent unauthorized collecting.

(12d) Comment: The locations of hellbender sites are already available to the public; therefore, publishing critical habitat maps would not increase the threat of illegal collection.

Our Response: Information currently available to the public is limited and reveals only a small proportion of the total number of sites occupied by Ozark Hellbenders. The designation of critical habitat would result in publishing in the Federal Register precise information about the species and its habitat requirements, where it is found, and maps with geographic coordinates for all occupied locations. The Service is already aware of instances in which the publication of locality information for occupied sites resulted in the removal of almost all individuals from the location. Thus, publishing locations of the remaining occupied sites would only further facilitate illegal collection.

(12e) Comment: The habitat of the Ozark Hellbender does not comprise discrete points along the streams, but rather its habitat comprises stream reaches. Therefore, the Service can avoid disclosing exact locations to the public by designating large segments as critical habitat in streams occupied by Ozark Hellbenders. One commenter further noted that the Service has designated large stream reaches for the Niangua darter and the Topeka shiner.

Our Response: When designating critical habitat, the Service must determine—based on the best available scientific information—the physical and biological features that are essential to the conservation of a species and which may require special management considerations or protection. Essential physical and biological features are specific habitat components that enable a species to fulfill its life cycle needs. Appropriate cover rocks or other crevices are necessary features to fulfill the life cycle needs of the Ozark Hellbender because they provide protection and nesting habitat. However, unlike the habitat for Niangua darters and the Topeka shiner, stream reaches containing suitable habitat for the Ozark Hellbender are not continuous. Areas with suitable habitat typically range from 100 to 400 yards (91 to 366 meters (m)) in length, and subpopulations within each river system are often separated by miles (kilometers) of unsuitable habitat (data from mark-recapture studies indicate that hellbenders rarely move between sites (Irwin 2009, pers. comm., Briggler 2010b, pers. comm.)). Therefore, by mapping the critical habitat and describing the physical and biological features essential to the conservation of the species, the Service would disclose the specific location of occupied sites and subject the hellbenders to collection.

(13) Comment: It is our understanding that the Saint Louis Zoo is currently engaged in propagation efforts and that the Missouri Department of Conservation plans to release captive-reared hellbenders into the Eleven Point River. This effort only addresses the Eleven Point River and not the Current River or the North Fork of the White River. In addition, we are concerned that these augmentation efforts will not be successful.

Our Response: Results from genetic studies (Crowhurst et al. 2011; pp. 640-643; Sabatino and Routman 2009; pp. 1239-1240, 1244) indicate that mixing Ozark Hellbenders among rivers could cause an outbreeding depression, or the reduction in fitness of offspring because of the genetic differences between parents. For this reason, it is unlikely that captive-reared individuals will be released into rivers other than those from which the eggs were collected. To date, the Missouri Department of Conservation has collected Ozark Hellbender eggs from the North Fork White River and the Eleven Point River, but has been unable to locate eggs from the Current River. Therefore, releases of captive-reared individuals are planned only for those rivers from which eggs have been collected (North Fork White River and Eleven Point River). Specific areas where augmentation or reintroductions will occur, however, have yet to be identified. Such propagation efforts will be identified in the development of a future approved Federal recovery plan for the species that will be developed through cooperative partnerships with the Ozark Hellbender Work Group and other potentially affected Federal, State, and private entities.

Regarding the predicted success of propagation efforts, the Service believes that captive propagation efforts will likely be necessary to conserve and recover the Ozark Hellbender, until causes for the lack of recruitment in the wild can be definitively identified and addressed. When eggs are collected in the wild, larvae can be hatched and reared at significantly higher survivorship rates than those estimated from the wild. When individuals are reared to larger sizes and then released, substantially more hellbenders can survive to maturity and contribute to the population.

We fully considered comments from the public and peer reviewers on the proposed rule to develop this final listing of the Ozark Hellbender. This final rule incorporates changes to our proposed listing based on comments received that are discussed above and on newly available scientific and commercial information. Reviewers generally commented that the proposed rule was thorough and comprehensive. We made some technical corrections based on new, although limited, information. Based on comments we received during the public comment period, we also included additional information to provide further evidence of the threat of illegal collection. Information received supports the Service's decision to list the Ozark Hellbender as endangered.

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. Each of these factors is discussed below.

One of the most likely causes of the decline of the Ozark Hellbender in the White River system in Missouri and Arkansas is habitat degradation resulting from impoundments, ore and gravel mining, sedimentation, nutrient runoff, and nest site disturbance from recreational uses of the rivers (Williams et al. 1981, p. 99; LaClaire 1993, pp. 4-5). Both hellbender subspecies are habitat specialists that depend on consistent levels of dissolved oxygen, temperature, and flow (Williams et al. 1981, p. 97). Therefore, even minor alterations to stream habitat are likely to be detrimental to hellbender populations.

Impoundments impact stream habitat in many ways. When a dam is built on a free-flowing stream, riffle and run habitats are converted to lentic (still), deep-water habitat. As a result, surface water temperatures tend to increase, and dissolved oxygen levels tend to decrease (Allan and Castillo 2007, pp. 97-98, 323-324). Hellbenders depend upon highly vascularized lateral skin folds for respiration. Therefore, lakes and reservoirs are unsuitable habitat for Ozark Hellbenders, because these areas have lower oxygen levels and higher water temperatures (Williams et al. 1981, p. 97; LaClaire 1993, p. 5) than do fast-flowing, cool-water stream habitats. Impoundments also fragment hellbender habitat, blocking the flow of immigration and emigration between populations (Dodd 1997, p. 178). The resulting small, isolated populations are more susceptible to environmental perturbation and demographic stochasticity, both of which can lead to local extinction (Wyman 1990, p. 351).

In the upper White River, construction of Beaver, Table Rock, Bull Shoals, and Norfork dams in the 1940s and 1950s destroyed the potential hellbender habitat downstream of the impoundments and effectively isolated Ozark Hellbender populations. Norfork Dam was constructed on the North Fork in 1944 and has isolated Ozark Hellbender populations in Bryant Creek from those in the North Fork. Furthermore, populations downstream of Beaver, Table Rock, Bull Shoals, and Norfork dams were likely extirpated due to hypolimnetic releases from the reservoir. Hypolimnetic releases are cooler than normal stream temperatures because they are from a layer of water that is below the thermocline, and the water from this layer typically has reduced oxygen levels because it is noncirculating or does not “turn over” to the surface. The tailwater zones below dams also experience extreme water level fluctuations and scouring for several miles downstream. This can impact hellbender populations by washing out the pebbles and cobbles used as cover by juveniles and by creating unpredictable habitat conditions outside the Ozark Hellbender's normal range of tolerance.

Impoundments can also affect hellbender habitat upstream by increasing sedimentation during periods of heavy rain because the flow of water is impeded by the presence of the reservoir. In 2008 and 2011, heavy rains and flooding resulted in an increase in water levels in excess of 10 to 15 feet (ft) (3 to 5 meters (m)) and significantly reduced flow velocity (Briggler 2011d, pers. comm.; Crabill 2011b, pers. obs.). Deposition of gravel from the 2008 flood event removed an estimated 30 percent of the available cover rocks and habitat at one of the most abundant Ozark Hellbender sites; while flooding in 2011 removed an additional 50 percent of the habitat at this site (Briggler 2011d, pers. comm.). During high water levels, Ozark Hellbenders at sites upstream of the reservoirs are also exposed to increased predation pressure by large predatory fishes. The increased water levels allow fish to expand upstream of the reservoir and have been observed in large numbers at upstream Ozark Hellbender sites (Roberts 2011, pers. comm.). The increased abundance of large predatory fish, such as brown trout and striped bass, at sites upstream of Norfork Reservoir has even been noted by private landowners near these sites (Anon. 2010, pers. comm.).

Gravel mining, which continues to occur in a number of streams within the range of the Ozark Hellbender, has directly contributed to Ozark Hellbender habitat alteration and loss. Gravel mining, also referred to as dredging, results in stream instability, both up and downstream of the dredged portion (Box and Mossa 1999, pp. 103-104). Head cutting, in which the increase in transport capacity of a dredged stream causes severe erosion and degradation upstream, results in extensive bank erosion and increased turbidity (Allan and Castillo 2007, p. 331). Reaches downstream of the dredged stream reach often experience aggradation (raised stream bed from sediment build up) as the sediment transport capacity of the stream is reduced (Box and Mossa 1999, p. 104). Gravel mining physically disturbs hellbender habitat in dredged areas, and associated silt plumes can impact various aspects of the hellbender's life requisites (nesting habitat, prey, dissolved oxygen for egg development). In addition, these effects reduce crayfish populations, which are the primary prey species for Ozark Hellbenders. Because noncommercial gravel mining is not regulated by the States or by the U.S. Army Corps of Engineers, it is difficult to determine the extent of gravel mining within southern Missouri and northern Arkansas. However, an aerial survey conducted in 2001 reported an estimated 12 and 41 active mining sites in the North Fork of the White River and Current River watersheds, respectively (no data were reported for watersheds of the Eleven Point or Spring rivers) (Noell 2003, p. 7).

Portions of the Ozark Plateau have a history of being major producers of lead and zinc, and some mining activity still occurs in the southeastern Ozarks, although at levels that are lower than those recorded historically. Results of a U.S. Geological Survey (USGS) water quality study conducted from 1992 to 1995 in the Ozark Plateau (Peterson et al. 1998, pp. 12-13) revealed that concentrations of lead and zinc in bed sediment and fish tissue were substantially higher at sites with historical or active mining activity. These concentrations were high enough to suggest adverse biological effects, such as reduced enzyme activity or death of aquatic organisms. Because hellbenders have highly permeable skin and obtain most of their oxygen through subcutaneous respiration, they are particularly susceptible to absorbing contaminants such as lead and zinc. Furthermore, because Ozark Hellbenders are long lived, they may be at higher risk of bioaccumulation of harmful chemicals (Peterson et al. 1998, pp. 12-13). Although mining for lead and zinc no longer occurs within the range of the Ozark Hellbender, Petersen et al. (1998, p. 12) determined that elevated concentrations of lead and zinc were still present in the streams where mining occurred historically. Although it is possible for these metals to be transported and diluted, they will not degrade over time; therefore, it is likely that lead and zinc concentrations found more than 10 years ago in these rivers would remain at similar concentrations today (Mosby 2008, pers. comm.). In addition, there are historical lead and zinc mining sites that are near Ozark Hellbender populations on the North Fork in Ozark County, Missouri (Mosby 2008, pers. comm.).

Increased lead and zinc contamination input to the Current River by way of the active Sweetwater Mine on Adair Creek in Reynolds County, Missouri, is a potential future risk. Adair Creek is a tributary of Logan Creek, a losing stream (loses water as it flows downhill) connected to Blue Spring, which discharges to the Current River. Although lead and zinc contaminants have been found in Logan Creek, there is no evidence that contaminants from Sweetwater Mine have migrated to Blue Spring. However, if the Sweetwater Mine's current tailings dam on Adair Creek were to fail, large concentrations of lead and zinc would be added to Blue Spring and the Current River (Mosby 2008, pers. comm.). Although not common, failures of tailings mines have occurred on six occasions in Missouri since 1940, with several releasing tailings into nearby drainages or creeks (USCOLD 1994, pp. 99-144).

Despite the claim by some that many Ozark streams outwardly appear pristine, Harvey (1980, pp. 53-60) clearly demonstrated that various sources of pollution exist in the ground water in the Springfield and Salem plateaus of southern Missouri. Water in the Ozark Plateaus is contaminated by nutrients from increased human waste (in part due to rapid urbanization and increased numbers of septic systems), fertilizers (including land application of chicken litter (poultry manure, bedding material, and wasted feed)), logging, and expanded industrial agricultural practices such as concentrated animal feeding operations (Petersen et al. 1998, p. 6). This contamination was evidenced when water samples from the North Fork White and Eleven Point rivers in 2003-2004 contained concentrations of total phosphorus and total nitrogen exceeding the U.S. Environmental Protection Agency (EPA) recommended criteria two-thirds of the time (Solis et al. 2007, pp. 430-431). Agricultural land and livestock production comprises a large percentage of the land use within the Ozark Hellbender range and is a continuing source of contamination (Wheeler et al. 2003, p. 155). Missouri is the second largest beef cattle-producing State in the nation, with the majority of animal units produced in the Ozarks. Both Arkansas and Missouri are leading States in poultry production. The National Water-Quality Assessment data collected in the Ozarks in 1992-1995 from wells and springs indicated that nitrate concentrations were strongly associated with the percentage of mostly agricultural land near the wells or springs (Petersen et al. 1998, p. 8).

Although nitrogen and phosphorus are essential plant nutrients that are found naturally in streams, elevated concentrations of these nutrients can cause increased growth of algae and aquatic plants in many streams and are detrimental to aquatic biota (Petersen et al. 1998, p. 6). Increased levels of nitrates (nitrate is a compound of nitrogen and oxygen and usually the most abundant form of nitrogen in the water) can also affect amphibians by inhibiting growth, decreasing survivability, and impairing their immune systems (Marco et al. 1999, p. 2837; Rouse et al. 1999, p. 801; Ortiz et al. 2004, pp. 235-236; Earl and Whiteman 2009, 1334-1335).

Increased recreational use (such as from canoeing, kayaking, rafting, inner tube floating, and small horsepower motor boating) also impacts the water and habitat quality in rivers inhabited by the Ozark Hellbender. From 2003 to 2008, the Missouri Department of Natural Resources included an 8-mi (13-km) stretch of the Jacks Fork River in the U.S. EPA's 303(d) list of impaired waters not meeting water quality standards for organic wastes (fecal coliform). Likely sources of the contamination include runoff from a commercial horse trail ride outfitter, horse stream crossings, and effluent from campground pit-toilets (Davis and Richards 2002, pp. 1, 3, and 36).

The 303(d) list included additional rivers inhabited by Ozark Hellbenders. A 21-mi (34-km) stretch of the Eleven Point River was listed as impaired due to unacceptable levels of chlorine and atmospheric deposition of mercury. Increased mercury levels have been implicated as a potential cause in the decline of other aquatic amphibians, such as the northern dusky salamander ( Desmognathus fuscus fuscus; Bank et al. 2006, pp. 234-236). Water quality monitoring on both the North Fork White and Eleven Point Rivers in Missouri detected estrogenic compounds that have been demonstrated to adversely impact aquatic organisms, although concentrations were lower than those shown to adversely affect aquatic organisms (Solis et al. 2007, p. 430). Nevertheless, this evidence indicates that hellbenders in the North Fork White and Eleven Point Rivers in Missouri are exposed to a variety of organic chemicals with potential estrogenic activity, and the total effect of these chemicals remains unknown. The Spring River has also suffered from many water quality perturbations over recent decades. In the late 1980s, the West Plains (Missouri) wastewater treatment plant failed, depositing all stored waste into the recharge area for the Spring River. In addition, the majority of the Ozarks region in Missouri and Arkansas is composed of karst topography (caves, springs, sinkholes, and losing streams), which can further facilitate the transport of potential contaminants.

Sediment inputs from land use activities have contributed to, and continue to contribute to, habitat degradation. Hellbenders are intolerant of sedimentation and turbidity (Nickerson and Mays 1973a, pp. 55-56), which can impact them in several ways:

(1) Sediment deposition on cover rocks reduces or removes suitable habitat for adults and can cover and suffocate eggs.

(2) Sediment fills interstitial spaces in pebble or cobble beds, reducing suitable habitat for larvae and subadults (FISRWG 1998, chapter 3, pp. 19, 25).

(3) Suspended sediment loads can cause water temperatures to increase, and cause more particles to absorb heat, thereby reducing dissolved oxygen levels (Allan and Castillo 2007, pp. 323-324).

(4) Sedimentation can impede the movement of individuals and colonization of new habitat (Routman 1993, p. 412).

(5) The Ozark Hellbender's highly permeable skin causes them to be negatively affected by sedimentation. Various chemicals, such as pesticides, bind to silt particles and become suspended in the water column when flushed into a stream. The hellbender's permeable skin can allow direct exposure to these chemicals, which can be toxic (Wheeler et al. 1999, pp. 1-2).

(6) Sedimentation may result in a decline of prey abundance by embedding cover rocks.

Timber harvest and associated activities (construction and increased use of unpaved roads, skid trails, and fire breaks) are prominent in many areas within the range of the Ozark Hellbender and increase terrestrial erosion and sedimentation into streams. Peak stream flows often rise in watersheds with timber harvesting activities, due in part to compacted soils resulting from construction of roads and landings (where products are sorted and loaded for transportation) and vegetation removal (Allan and Castillo 2007, p. 332; Box and Mossa 1999, pp. 102-103). The cumulative effects of timber harvest on sedimentation rates may last for a couple of decades, even after harvest practices have ceased in the area (Frissell 1997, pp. 102-104).

In addition to those constructed for timber harvest, other roads which are improperly designed and maintained can cause marginally stable slopes to fail, and also capture surface runoff and channel it directly into streams (Allan and Castillo 2007, pp. 321-322, 340). Erosion from roads contributes more sediment than the land harvested for timber (Box and Mossa 1999, p. 102).

Unrestricted cattle access to streams increases erosion and subsequent sediment loads (Clary and Kinney 2002, p. 145). This is particularly a concern for the Eleven Point River in Arkansas (Irwin 2008b, pers. comm.).

Habitat disturbance affects hellbender survival in multiple rivers. Most rivers and streams inhabited by hellbenders are extremely popular with canoeists, kayakers, rafters, inner tube floaters, or operators of low-horsepower motorboats. Canoe, kayak, and motor and jet boat traffic continues to increase on the Jacks Fork, Current, Eleven Point, and North Fork Rivers. On the North Fork River, an average of five canoes per weekday were observed in 1998, and in 2004, that figure increased to 21 canoes per weekday (Pitt 2005, pers. comm.). Hellbenders encountered with gashes in their heads suggest that watercraft traffic likely impacts these animals. New roads, boat ramps, and other river access points have been constructed, which lead to increased river access and increased disturbance to hellbenders (Briggler et al. 2007, p. 64). Off-road vehicle (ORV) recreation is also widespread throughout the Ozarks region. ORVs frequently cross rivers inhabited by hellbenders and are driven in riverbeds where the water is shallow enough to enable this form of recreation. The force delivered by a boat or ORV hitting a rock could easily injure or kill a hellbender, in addition to displacing or disrupting cover rocks. ORV activity also increases erosion and sedimentation by exposing bare erodible soils in areas with frequent activity.

The practice of removing large rocks and boulders (by hand, machinery, or dynamite) to reduce damage to canoes is common on many hellbender streams (Nickerson and Mays 1973a, p. 56; Wheeler et al. 1999, p. 4). It has been reported that rocks are possibly removed from streams for home landscaping projects (Briggler et al. 2007, p. 62), although data to support this assertion is lacking. Rock turning and flipping is also done by crayfish hunters, herpetofauna enthusiasts, and researchers (Briggler et al. 2007, pp. 61 and 66). The areas under these large rocks are important habitat for cover and nest sites; therefore, overturning or removing these rocks can diminish available cover and nest sites for hellbenders.

The threats to the Ozark Hellbender from habitat destruction and modification are occurring throughout the entire range of the subspecies. These threats include impoundments, mining, water quality degradation, siltation, and disturbance from recreational activities.

The effects of impoundments on Ozark Hellbenders are significant because impoundments alter both upstream and downstream habitat directly, isolate populations, change water temperatures and flows below reservoirs, and increase exposure to predatory fish immediately upstream of the impoundments. Remaining Ozark Hellbender populations are small and isolated, in part due to increased impoundments over time, making hellbenders vulnerable to individual catastrophic events and reducing the likelihood of recolonization after localized extirpations.

Habitat destruction and modification from siltation and water quality degradation present a significant and immediate threat to the Ozark Hellbender. Siltation and water quality degradation are caused by human and livestock wastes, agricultural runoff, mine waste, and activities related to timber harvesting. Increased siltation may affect hellbenders in a variety of ways, such as suffocating eggs, eliminating suitable habitat for all life stages, reducing dissolved oxygen levels, increasing contaminants (that bind to sediments), and reducing prey populations. Increased nitrate levels, along with other contaminants from agricultural runoff and increased urbanization, have been detected in hellbender streams. These contaminants not only pose a threat directly to the Ozark Hellbender but also to the aquatic ecosystems upon which this species depends.

Pressure from recreational uses (for example, boat traffic, horseback riding, and ORV use) in streams inhabited by Ozark Hellbenders has increased substantially on an annual basis, directly disturbing the habitat. Most hellbender rivers are popular with canoeists, kayakers, rafters, inner tube floaters, and motorboat operators. Removing large rocks and boulders to reduce damage to canoes is a common practice. Gardeners remove rocks for use in landscaping. Crayfish hunters, herpetofauna enthusiasts, and independent researchers (without scientific permits) turn and flip rocks. This disturbance is significant because areas under large rocks are important habitat for cover and nest sites; therefore, overturning and removing these rocks reduces available cover and nest sites for hellbenders. The threats of rock removal and overturning are expected to continue or even increase as these recreational activities grow in popularity.

Anecdotal reports and other information indicate that Ozark Hellbenders have been collected for commercial and scientific purposes (Trauth et al. 1992, p. 85; Nickerson and Briggler 2007, pp. 208-209). Although commercial collecting of Ozark Hellbenders has never been permitted by the Arkansas Game and Fish Commission (Irwin 2011b, pers. comm.) nor by the Missouri Department of Conservation (Briggler 2011a, pers. comm.), Nickerson and Briggler (2007, pp. 207-212) determined that large numbers of Ozark Hellbenders have been sold for the pet trade. Because of their protected status in Missouri and Arkansas, any actions involving interstate or foreign commerce of Ozark Hellbenders collected from these States would also be prohibited by the Federal Lacey Act (16 U.S.C. 3371-3378).

In Arkansas, hellbenders may be collected with a scientific collecting permit from the AGFC; however, no permits are being issued currently or are anticipated to be issued in the future because the State acknowledges the severely imperiled status of the subspecies (Irwin 2008b, pers. comm.). Missouri imposed a moratorium on hellbender scientific collecting from 1991 to 1996 and has since issued only limited numbers of scientific collecting permits for research (Horner 2008, pers. comm.). Despite these restrictions, unauthorized collecting for the pet trade remains a threat throughout the range because of the willingness of individuals to collect hellbenders illegally (Briggler 2011a, pers. comm.).

The illegal and legal collection of hellbenders for research purposes, museum collections, zoological exhibits, and the pet trade has undoubtedly been a contributing factor to hellbender declines. Nickerson and Briggler (2007, pp. 208-211) documented the removal of 558 hellbenders (approximately 300 animals illegally) from the North Fork White River from 1969 to 1989. At least 100 of these were collected in the mid-1980s by individuals from Alabama (Figg 1992, pers. comm.). One of these collectors contacted the Missouri Department of Conservation in 1992 out of remorse and provided details about collecting the hellbenders (Figg 1992, pers. comm.). According to the individual, animals were exported to Japan and labeled as Eastern Hellbenders because Ozark Hellbenders were protected. The individual also relayed that he knew where to search for hellbenders by reading the published literature. In 1985, Missouri Department of Conservation agents apprehended two other individuals illegally collecting Ozark Hellbenders, among other protected species, from the North Fork White River (McNair 2011, pers. comm.). The two individuals were cited and fined for “possession of a protected species.”

Anecdotal information suggests unauthorized collection of Ozark Hellbenders on the Spring River in Arkansas contributed to the recent population crash, as reaches of the Spring River that formerly contained 35 to 40 hellbenders have had no individuals present for more than 10 years (Irwin 2008b, pers. comm.). The decline is linked to unauthorized collecting because Ozark Hellbenders were located in one small, easily accessible area of the Spring River, and no other event (such as a storm or chemical spill) had occurred in that area that would explain such a rapid decline (Irwin 2008b, pers. comm.). At another Spring River site, personnel from a local canoe rental reported that commercial collectors took more than 100 Ozark Hellbenders in 2 days (Trauth et al. 1992, p. 85), which also likely impacted the population. Amphibians such as the hellbender, a relatively slow-moving, aquatic species, may be collected with little effort, making them even more susceptible to this threat.

While large collecting events appear to have occurred primarily in the 1980s, the unauthorized collection of hellbenders for the pet trade remains a major concern. In 2001, an advertisement in a Buffalo, New York, newspaper was selling hellbenders for $50 each (Mayasich et al. 2003, p. 20). In 2003, a pet dealer in Florida posted an Internet ad that offered “top dollar” for large numbers of hellbenders, wanted in groups of at least 100 (Briggler 2007, pers. comm.). Also in 2003, a person in Pennsylvania had an Internet posting stating specifically that an Ozark Hellbender was wanted, no matter the price or regulatory consequence (Briggler 2007, pers. comm.); while in 2010 a person posted an Internet ad looking for wholesale lots of hellbenders (Briggler 2010a, pers. comm.). At the 2005 Hellbender Symposium, it was announced that U.S. hellbenders were found for sale in Japanese pet stores, which is likely the largest market for this species (Briggler 2005, pers. comm.). Further evidence of the current demand for hellbenders overseas includes an Eastern Hellbender declared for export to Europe in 2010 (Tabor 2010, pers. comm.) and a hellbender (subspecies not specified) declared in 2005 for export to Japan (LEMIS 2008). The Law Enforcement Management Information System (LEMIS) is the Service's law enforcement data system and includes information on imported and exported wildlife. Numbers provided by LEMIS declarations reports, however, can differ greatly from actual export numbers when animals are collected illegally and not declared. As Ozark Hellbenders become rarer, their market value is likely to increase. In fact, listing the subspecies as endangered may also enhance the subspecies potential commercial value as the rarity of the subspecies is made public.

Unlike many U.S. species listed under the Act, the Ozark Hellbender has commercial trade value. Due to the market demand and the apparent willingness of individuals to collect hellbenders illegally, we believe that any action that publicly discloses the location of hellbenders (such as publication of specific critical habitat maps or locations) puts the species in further peril. For example, due to the threat of unauthorized collection and trade, the Missouri Department of Conservation and Arkansas Game and Fish Commission have implemented extraordinary measures to control and restrict information on the locations of Ozark Hellbenders and thus no longer make location and survey information readily available to the public.

Recreational fishing may also negatively impact Ozark Hellbender populations due to animosity towards hellbenders, which some anglers believe to be poisonous and to interfere with fish production (Gates et al. 1985, p. 18). In addition, there are unpublished reports of hellbenders accidentally killed by frog or fish gigging (spearing), when a hellbender may get speared inadvertently (Nickerson and Briggler 2007, pp. 209, 212). The MDC reports that gigging popularity and pressure have increased, which increases the threat to hellbenders during the breeding season when they tend to move greater distances and congregate in small groups where they are an easy target for giggers (Nickerson and Briggler 2007, p. 212). The gigging season for various species of suckers spans the reproductive season of the Ozark Hellbender in the North Fork White River and also overlaps that of the hellbender in other river basins. The sucker gigging season opens September 15, during the peak breeding period when hellbenders are most active and, therefore, most exposed.

Gigging is popular in hellbender streams to such a degree that marks are often noticed on the bedrock and the river bottom from giggers' spears (Briggler 2007, pers. comm.). Although the chance of finding a gigged hellbender can be limited (due to presence of scavengers, the fast decomposition rate of amphibians, and the possibility of giggers removing the specimen), two gigged hellbenders were found along the stream bank on the North Fork White River in 2004 (Huang 2007, pers. comm.). In their studies of Missouri hellbenders, Nickerson and Mays (1973a, p. 56) found dead gigged specimens, and they reference data showing how susceptible the species is to this threat. Ozark Hellbenders are sometimes unintentionally caught by anglers. However, catching hellbenders while fishing is not a frequent occurrence and is not believed to be a significant threat to the species, especially if anglers follow instructions posted by the Missouri Department of Conservation to remove the hook or cut the fishing line and return the hellbender to the stream (Briggler 2009, pers. comm.).

The Ozark Hellbender is a rare and unique amphibian that has experienced extensive collection from the wild for various reasons. Due to the continued decline of the Ozark Hellbender and the history of its collection, State agencies in Missouri and Arkansas have implemented measures to reduce the threat of collection. These measures include moratoriums on issuance of scientific collecting permits; prohibiting the collection, possession, and sale of hellbenders under appropriate State wildlife statutes; and controlling information on the location of hellbenders. The unauthorized collection of Ozark Hellbenders for illegal commercial sale in the pet trade, however, continues to be a significant threat.

Background—Chytridiomycosis is a highly infectious amphibian disease caused by the pathogen Batrachochytrium dendrobatidis (Bd, or amphibian chytrid fungus), and has been demonstrated to infect and kill all life stages of an increasing number of amphibian species worldwide (Berger et al. 1998, pp. 9031-9036). The Ozark Hellbender is now included on the ever-increasing global list of amphibian species potentially affected by this fatal pathogen (Speare and Berger 2011, pp. 1-9).

The chytrid fungus attacks the keratinized tissue of amphibians' skin, which can lead to clinical signs of disease presence, such as thickened epidermis, lesions, body swelling, lethargy, abnormal posture, loss of righting reflex, and death (Daszak et al. 1999, pp. 737-738; Bosch et al. 2001, p. 331; Carey et al. 2003, p. 130). It is believed that the fungus originated from Africa with the African clawed frog ( Xenopus laevis ), used throughout the United States in the 1930s and 1940s for pregnancy testing. This pathogen is now found on all continents including Asia, where it was recently documented (Weldon et al. 2004, pp. 2100-2105; Speare and Berger 2005, pp. 1-9; Goka et al. 2009, pp. 4765-4767).

Currently, there are two theories on the development of the Bd as a global amphibian pathogen. One theory is that the fungus is not a new pathogen, but has increased in virulence or in host susceptibility caused by other factors (Berger et al. 1998, p. 9036). The other, more widely supported theory is that Bd is an introduced species whose spread has been described as an epidemic `wave-like' front (Lips et al. 2006, pp. 3166-3169; Morehouse et al. 2003, p. 400).

B. dendrobatidis lives in aquatic systems in which it `swims' (using spores) through the water and reproduces asexually. The fungus develops most rapidly at 73.4 °F (23 °C) in culture, with slower growth rate at 82.4 °F (28 °C) and reversible stop of growth at 84.2 °F (29 °C; Daszak et al. 1999, p. 741). The temperatures in Ozark streams are ideal for the spread and persistence of this pathogen. Based on U.S. Geological Survey water data from 1996-2006, the maximum temperature of these hellbender streams is 77.0 to 80.6 °F (25 to 27 °C), although the average water temperature over one year (for Eleven Point, Current, and North Fork White River) is approximately 59.0 to 60.8 °F (15 to 16 °C)(Barr 2007, pers. comm.).

Persistence of Bd may be further enhanced by saprophytic development (obtaining nourishment from dead or decaying material in water; Daszak et al. 1999, p. 740). Johnson and Speare (2003, pp. 923-924) concluded that the fungus can survive saprophytically outside the amphibian host for up to 7 weeks in lake water and up to 3 to 4 weeks in tap water. Further, Carey et al. (2003, p. 130) stated that amphibians can be infected when placed either in water containing zoospores that were placed specifically in the water, or in water from which infected animals have been recently removed. The possibility that Bd can develop for even a short period of time outside the amphibian host may greatly increase its impact and accelerate host population declines (Carey et al. 2003, p. 130). Also, the possibility of long-term survival of the pathogen as a saprophyte may explain the lack of recolonization of streams from which amphibians, such as the Ozark Hellbender, have been extirpated (Daszak et al. 1999, p. 740). Moreover, hellbenders that are not already infected with Bd are continually at risk because temperatures are ideal for the persistence of the fungus in the water (without a host) for a long period.

Habitat specializations and a variety of underlying predisposing environmental factors may make an animal more vulnerable to exposure to the pathogen, especially for species such as the Ozark Hellbender that carry out their life cycle in aquatic rather than terrestrial habitats (Carey et al. 2003, p. 131). Since the Ozark Hellbender lives in an aquatic system throughout its entire life, there is no possibility for relief from this fungus. Climate change is one of the environmental factors that has been indicated as a key promoter in the spread of the Bd pathogen (Pounds et al. 2006, pp. 161-167). Rachowicz et al. (2006, pp. 1676-1682) found that chytridiomycosis was implicated in the local extirpations of two species of frog, and they conclude with high confidence that large-scale warming was the key factor in the disappearances of these two species. Although environmental factors (for example, increased UV-B, chemical pollution, climate change) may predispose amphibian populations to pathogens, evidence suggests that cofactors are not required for chytridiomycosis to cause mass amphibian deaths (Daszak et al. 1999, p. 741).

Overall, chytridiomycosis has been implicated in local population extirpations, sustained population declines, and possibly species extinctions for many amphibian species (Berger et al. 1998, pp. 9031-9036; Bosch et al. 2001, pp. 331-337). Chytrid fungi are the best supported pathogens related to amphibian declines, with more than 93 species worldwide affected as of 2005 (Collins and Storfer 2003, pp. 89-98; Daszak et al. 2003, pp. 141-150; Speare and Berger 2005, p. 1). For example, in surveys conducted by Lips et al. (2006, pp. 3165-3166) in Costa Rica and Panama, during only a few months of surveying, frog and salamander species richness and amphibian density declined by more than 60 percent and 90 percent, respectively. The declines were attributed to the prevalence of chytrid fungus in amphibian habitats (Lips et al. 2006, pp. 3165-3166).

Disease in captive hellbenders —The St. Louis Zoo maintains a captive population of Ozark and Eastern Hellbenders. In March 2006, there was a power outage in the Zoo's herpetarium, including the area where the hellbenders are held. Soon after the power outage, which may have stressed the hellbenders, possibly reducing their immunity, several hellbenders were observed “with substrate (rocks) sticking to the skin and many were floating” (Duncan 2007, pers. comm.). More than 75 percent of the captive population whose death occurred from March 2006 through April 2007 (59 individuals) likely resulted either directly or indirectly from Bd (Duncan 2007, pers. comm.).

Disease in wild hellbenders —As a result of the mortalities in the St. Louis Zoo hellbender population, in 2006 the Missouri Department of Conservation began testing wild hellbenders in Missouri for infection by the pathogen. All Ozark Hellbender streams surveyed had individual hellbenders that tested positive for the pathogen (Briggler 2008b, pers. comm.). Data from 2006 and 2007 show that, for the presence of B. dendrobatidis within the Current River, 20 percent of the population was positive (heavily positive in a few locations, indicating higher concentrations of the fungus); within the Eleven Point River (Missouri and Arkansas), 16 percent was positive (positives spread throughout river); and within the North Fork of the White River, 15 percent was positive (positives spread throughout river) (Briggler 2008b, pers. comm.). These results indicate the minimum number of infected individuals because polymerase chain reaction (PCR) tests for B. dendrobatidis may produce false negative results if the infection is localized in different tissues than were analyzed (Beard and O'Neill 2005, p. 594). The only Ozark Hellbender river not surveyed for the pathogen was the Spring River, where the subspecies is considered functionally extirpated (Irwin 2008a, pers. comm.). During future surveys, all animals encountered (new and recaptures) will be tested for the presence of B. dendrobatidis.

The immediacy of the threat from chytridiomycosis has been significantly heightened since the Bd pathogen has been found to occur in all known extant populations of the Ozark Hellbender. Exact effects of the fungus on Ozark Hellbender populations remains unknown, but infected individuals of other amphibian species have experienced decreased growth rates (Davidson et al. 2007, p. 1773) and reduced survivability (Pilliod et al. 2010, pp. 1264-1265). Hellbenders may be particularly sensitive to thickening of the epidermis caused by Bd (Daszak et al. 1999, pp. 737-738) as more than 90 percent of their oxygen is obtained through cutaneous respiration (Guimond and Hutchison, p. 1263).

Wheeler et al. (2002, pp. 250-251) investigated morphological aberrations in the Ozark Hellbender over a 10-year period. They obtained deformity data from salamanders that were examined during population and distributional surveys in the Eleven Point River, North Fork of the White River, and Spring River dating back to 1990. They reported a variety of abnormal limb structures, including missing toes, feet, and limbs. Additional abnormalities encountered include epidermal lesions, blindness, missing eyes, and bifurcated limbs. Three hellbenders were documented with tumors on their bodies in the Spring River in Arkansas. Briggler (2011b, pers. comm.) is evaluating and compiling additional information on these abnormalities and lesions, including the frequency of occurrence. Several hellbenders with these abnormalities were x-rayed and are being analyzed by Jeff Briggler, Missouri Department of Conservation. One hellbender with extreme abnormalities (all limbs missing) was euthanized and sent to the USGS National Wildlife Health Center for necropsy, where the conclusive cause for the individual's missing limbs and digits could not be determined.

In 2004, 72 percent of Ozark Hellbenders captured had abnormalities present. For reference, 49 percent of Eastern Hellbenders captured in Missouri had abnormalities (Briggler 2007, pers. comm.). In 2006, 90 percent of Ozark Hellbenders surveyed from the Eleven Point River (Missouri), 73 percent from the Current River, and 67 percent from the North Fork of the White River had abnormalities (Briggler 2007, pers. comm.). In general, abnormalities in Ozark Hellbenders are becoming increasingly common and severe, often to a level that the animals are near death (for example, missing digits on all or most limbs, missing all or most limbs; Briggler 2007, pers. comm.). Most, if not all, hellbenders collected in the past decade from the Spring River have had some type of major malformity or lesions (Davidson 2008, pers. comm.). In fact, a hellbender found in the Spring River in 2004 was missing all four feet and was covered in lesions and a fungal growth externally and inside its mouth; this animal died within 15 minutes of capture (Davidson 2008, pers. comm.).

The current belief is that secondary bacterial and fungal infections are causing the observed abnormalities on Ozark Hellbenders (Briggler 2011a, pers. comm.). While these pathogens likely naturally occur on the animals, it appears that some unknown factor is increasing the hellbenders' susceptibility to these infections. In hellbenders infected with Bd, there may be a connection between the chytrid fungus and presence of abnormalities such as lesions, digit and appendage loss, and epidermal sloughing. Although evidence is lacking to conclude that infection by Bd causes immunosuppression, it has been hypothesized that the pathogen increases the vulnerability of hellbenders to secondary bacterial and fungal infections and thus is associated with the abnormalities (Irwin 2010, pers. comm.). However, not all hellbenders exhibiting the abnormalities described above test positive for infection by the fungus. Therefore, while the Bd pathogen may cause some hellbenders to be more susceptible to other infections, including those responsible for lesions and appendage loss, it appears that additional unknown factors are underlying the increased vulnerability.

While the cause of the observed abnormalities is uncertain, the presence of these physical impairments (and the frequency with which they occur) is likely contributing to Ozark Hellbender declines by reducing survivorship and reproduction. Lesions on the feet and absence of appendages altogether seemingly would reduce motility and foraging ability, and possibly increase vulnerability of hellbenders to predators. Blindness or missing eyes may also decrease survivability; while the overall stress imposed on affected individuals has the potential to reduce breeding activities and thus decrease recruitment.

Trout stocking has increased in recent years both in Missouri and Arkansas. While no trout are native to Missouri, both nonnative brown trout ( Salmo trutta ) and nonnative rainbow trout ( Oncorhynchus mykiss ) have been sporadically introduced into Ozark area waters for recreational fishing purposes since the 1800s. The 2003 MDC Trout Management Plan calls for increased levels of stocking as well as increasing the length of cold-water-stream stretches that will be stocked with brown and rainbow trout (Missouri Department of Conservation 2003, pp. 31-32). Nonnative trout are stocked in all rivers that historically and currently contain Ozark Hellbenders ((MDC 2003, pp. 24-26, AGFC 2004, p. 4). In Arkansas, the Arkansas Game and Fish Commission is currently working with the U.S. Army Corps of Engineers to improve cold water releases from mainstem dams along the White River, to improve conditions for trout below the reservoirs (U.S. Army Corps of Engineers 2008, pp. 1-40). In addition, highly predacious tiger muskies (hybrids between Northern pike and muskellunge ( Esox masquinogy x E.lucius ) were introduced into the Spring River in Arkansas in 1989.

Introduced fishes have had dramatic negative effects on populations of amphibians throughout North America (Bradford 1989, pp. 776-778; Funk and Dunlap 1999, pp. 1760-1766; Gillespie 2001, pp. 192-196; Pilliod and Peterson 2001, pp. 326-331; Vredenburg 2004, pp. 7648-7649). Rainbow trout and brown trout are considered opportunists in diet, varying their diet with what is available, including larval amphibians (Smith 1985, p. 231; Pflieger 1997, pp. 224-225). Brown trout grow bigger and tolerate a wider range of habitats than do rainbow trout and, therefore, may be a more serious threat to hellbenders, particularly at the larval stage. Dunham et al. (2004, pp. 19-24) assessed the impacts of nonnative trout in headwater ecosystems in western North America. The authors documented at least eight amphibian species that exhibited negative associations with nonnative trout in mountain lakes, specifically regarding the occurrence or abundance of larval life stages of native amphibians. Also, salamander species, such as the long-toed salamander ( Ambystoma macrodactylum ), have been extirpated from waterbodies in high-elevation lakes in western North America due to stocked nonnative trout (Pilliod and Peterson 2001, p. 330).

Preliminary data suggest that larval hellbenders from declining populations in Missouri do not recognize brown trout as dangerous predators. In contrast, larvae from more stable southeastern (U.S.) populations that co-occur with native trout show “fright” responses to brown trout (Mathis 2008a, pers. comm.). The failure of hellbender larvae to recognize trout as a threat is likely a nonadaptive response the makes this amphibian more susceptible to predation. A recent study conducted by Gall (2008, pp. 1-86) confirmed results found with this preliminary data on Missouri hellbender populations.

Gall (2008, p. 3) examined hellbender (Ozark and eastern) predator-prey interactions by (1) studying the foraging behavior of predatory fish species (native and nonnative (trout)) in response to the presence of hellbender secretion (a potentially noxious chemical cue produced by stressed hellbenders), (2) comparing the number of secretion-soaked food pellets consumed by rainbow and brown trout, and (3) comparing the response of larval hellbenders to chemical stimuli between native predatory fishes and nonnative trout. Gall (2008, pp. 23, 30-31) determined that brown trout were attracted to the secretion emitted by hellbenders, and hellbender secretions were more palatable to brown trout than to rainbow trout. Also, although hellbenders in Missouri exhibited only weak fright responses when exposed to trout stimuli, they responded with strong fright responses to other native predatory fish.

Gall (2008, p. 63) suggested that the limited evolutionary history between salmonids (brown and rainbow trout) and hellbenders in Missouri is likely responsible for the weak fright behavior exhibited by hellbenders in response to trout stimuli. Although brown and rainbow trout are a threat to hellbenders, results from this study indicate that rainbow trout are less of an immediate concern than brown trout (Gall 2008, pp. 63-64). This may be due to the difference in diet of the two species; rainbow trout maintain a predominately invertebrate diet throughout their lives and brown trout switch from predominately invertebrate prey to predominately vertebrate prey (including salamanders) at about 8.7 in (22 cm) in length (Gall 2008, p. 60). Gall (2008, p. 63) provided evidence that predation by introduced trout cannot be ruled out as a factor affecting the Ozark Hellbender and possibly contributes to their decline.

In addition to brown trout and four other native predatory fish, walleye ( Stizostedion vitreum ) have been stimulated to approach prey more often and faster in the presence of hellbender secretions (Gall 2008, pp. 23-24). Although walleye are native, stocking the species at greater densities than those occurring naturally may increase predation pressures on hellbender larvae stocked in hellbender streams, because walleye share similar activity periods with hellbenders (Mathis 2008b, pers. comm.).

The discovery of the presence of Batrachochytrium dendrobatidis (Bd, or amphibian chytrid fungus) in 2006 within all remaining populations of the Ozark Hellbender has made increased protection even more important to the persistence of this subspecies (Utrup 2007, pers. comm.). The threat from chytridiomycosis is significant and immediate because: (1) It is proven to be a fatal pathogen to Ozark Hellbenders in captivity, and (2) in the wild, all streams with extant Ozark Hellbender populations have individuals that tested positive for the pathogen (Briggler 2008b, pers. comm.). In addition, although it is unclear if there is a connection to chytridiomycosis, abnormalities found on Ozark Hellbenders are increasingly severe, often to a level short of mortality (Briggler 2008a, pers. comm.).

Nonnative trout are stocked in all rivers that historically and currently contain hellbenders in Missouri. Predation of larval hellbenders by nonnative trout and other piscivorous fish possibly contributes to the decline of Ozark Hellbender populations in Missouri and may be a growing concern if predatory fish continue to be stocked (or are stocked in larger numbers) in hellbender streams.

In Arkansas, hellbenders may be collected with a scientific collecting permit from the AGFC; however, no permits are anticipated to be issued now or in the future because the State acknowledges the severely imperiled status of the subspecies (Irwin 2008b, pers. comm.). Although Arkansas does not have a State endangered and threatened species list, the State considers the Ozark Hellbender a nongame species and prohibits collection without a permit. The Ozark Hellbender is a State-endangered species in Missouri, which prohibits importation, exportation, transportation, sale, purchase, taking, and possession of the species without a permit. MDC placed a moratorium on hellbender scientific collecting from 1991 to 1996 and has since allowed only limited numbers of scientific collecting permits, and only for those projects contributing to conservation and recovery efforts (Briggler 2011d, pers. comm.). Despite receiving maximum protection by both States, continued unauthorized collecting for the pet trade has been documented and remains a threat throughout the range.

State regulations for gigging and for trout stocking do not protect the Ozark Hellbender. The gigging season for various species of suckers spans the reproductive season of the Ozark Hellbender in the North Fork White River and overlaps that of the hellbender in other river basins as well. The sucker gigging season opens annually on September 15, during the peak breeding period when hellbenders are most active and, therefore, most exposed. The 2003 MDC Trout Management Plan calls for increased levels of stocking as well as increasing the length of cold water streams that will be stocked with brown and rainbow trout (MDC 2003, pp. 31-32). In Arkansas, the Arkansas Game and Fish Commission is currently working with the U.S. Army Corps of Engineers to improve cold water releases from mainstem dams along the White River to improve conditions for trout below the reservoirs (U.S. Army Corps of Engineers 2008, pp. 1-40).

Although the Clean Water Act of 1972 (CWA (Pub. L. 92-500)) resulted in an overall gain in water quality in streams, degraded water quality still is a significant factor affecting highly sensitive aquatic organisms such as the Ozark Hellbender because a number of activities responsible for habitat degradation are outside of regulatory oversight. There are no regulatory requirements to implement Best Management Practices (BMPs) to protect water quality from timber management actions. Existing BMPs by the Arkansas Forestry Commission and Missouri Department of Conservation lack mandatory requirements for implementing methods to reduce aquatic resource impacts associated with timber management. Timber harvest activities (for example, logging decks, increased use of unpaved roads, improperly designed and maintained roads, skid trails, fire breaks) may result in erosion and sedimentation. Additionally, there are no laws or regulations that preclude livestock from grazing in riparian corridors and wading in streams and rivers. Nonpoint pollution sources (for example, animal and human waste, agricultural practices, increased road construction) may be causing much of the degraded water quality throughout the Ozark Hellbender's range. The degradation is more apparent in stretches of rivers that are not within federally or State protected lands, such as in the Eleven Point River in Arkansas (Irwin 2008b, pers. comm.). While portions of the Eleven Point River watershed in Missouri are owned by the Federal Government and managed to protect stream and riparian areas from erosion, the entire watershed in Arkansas is privately owned with increased threat from stream bank clearing and unrestricted livestock access, which have an increased effect on remaining Ozark Hellbender populations (Irwin 2008b, pers. comm.).

The court's decision in American Mining Congress v. U.S. Army Corps of Engineers (D.D.C. 1997) resulted in the U.S. Army Corps of Engineers deregulating gravel removal activities under section 404 of the CWA. The court found that “de-minimus” or incidental fallback of sand and gravel into the stream from which it was being excavated did not constitute the placement of fill by the mining operation. Hence, the court ruled that the Army Corps of Engineers had exceeded their authority in requiring a permit for this activity. Although these activities no longer require a Clean Water Act 404 permit, commercial operations in Missouri must apply for a State permit through the Missouri Department of Natural Resources Land Reclamation Program. Modifications of stream channels associated with gravel mining, as well as the removal of pebbles and cobble that are important microhabitat for larvae and subadults, possibly contribute to the decline of Ozark Hellbenders in these systems.

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 a person engages in a prohibited act with an Ozark Hellbender unlawfully collected from Federal lands, such as those Federal lands within the range of the Ozark Hellbender 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 Amendments of 1981 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 it is a violation of Missouri and Arkansas wildlife codes and regulations to sell, purchase, or engage in any actions relating to the commercial trade of Ozark Hellbenders (for example, import, export, ship, or transport), any interstate or foreign commerce of the Ozark Hellbender would result in a violation of the Lacey Act Amendments of 1981. However, if an illegally obtained hellbender is not identified to the Ozark subspecies, it would be difficult for a wildlife inspector to identify it as the prohibited taxon. Although the prohibitions and penalties of the Lacey Act Amendments of 1981 provide some protection for the Ozark Hellbender, this law, by itself, does not adequately prevent or reduce the illegal commercial trade of hellbenders.

The unauthorized collection and trade of Ozark Hellbenders within the United States and internationally is of growing concern, particularly as the subspecies' rarity increases and, consequently, commercial value increases. Therefore, concurrent with the proposal to list the Ozark Hellbender as endangered, the Service proposed on September 8, 2010, to include both hellbender subspecies in Appendix III of CITES. CITES is an international agreement between governments with the purpose of ensuring that international trade in wild animals and plants does not threaten their survival. CITES listing of the Ozark Hellbender would aid in curbing unauthorized international trade of hellbenders.

CITES can list species in one of three appendices. Appendix I includes species threatened with extinction that are or may be affected by international trade. Appendix II includes species that, although not necessarily threatened with extinction now, may become so unless the trade is strictly controlled. Appendix II also includes species that CITES must regulate so that trade in other listed species may be brought under effective control (for example, because of similarity of appearance between listed species and other species). Appendix III includes native species identified by any Party country that needs to be regulated to prevent or restrict exploitation; under Appendix III, that Party country requests the help of other Parties to monitor and control the trade of that species. Based on the criteria described in 50 CFR 23.90, the Eastern and the Ozark hellbenders qualify for listing in CITES Appendix III. Listing all 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. Appendix III listings will 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. The final rule for the CITES Appendix III listing is being published concurrently in today's Federal Register .

Some existing regulatory mechanisms provide protection for the Ozark Hellbender and its habitat. Existing Federal and State water quality laws can be applied to protect water quality in streams occupied by the hellbender, but several factors contributing to degradation of water quality remain outside government regulatory authority. The requirement for a U.S. Army Corps of Engineers dredge and fill permit under section 404 of the Clean Water Act has resulted in an overall gain in water quality. However, ongoing gravel mining in hellbender streams is no longer regulated by the Corps of Engineers under section 404 of the Clean Water Act. Although the Lacey Act provides some protection, the current regulatory mechanisms are not adequate to protect Ozark Hellbenders from unauthorized collection for commercial sale in the pet trade. The Service also finalized listing the Eastern and Ozark hellbender in Appendix III of CITES concurrently in today's Federal Register . Nonetheless, the CITES listing applies only to the export of hellbenders from the United States. Current regulations also do not protect Ozark Hellbenders from gigging by anglers or potential predation by introduced nonnative trout.

Small, Isolated Populations —The small size and isolation of remaining populations of the Ozark Hellbender make it vulnerable to extinction due to genetic drift, inbreeding depression, and random or chance events (Smith 1990, pp. 311-321). Inbreeding depression can result in death, decreased fertility, smaller body size, loss of vigor, reduced fitness, and various chromosome abnormalities (Smith 1990, pp. 311-321). Despite any evolutionary adaptations for rarity, habitat loss and degradation increase a species' vulnerability to extinction (Noss and Cooperrider 1994, pp. 58-62). Numerous authors (such as Noss and Cooperrider 1994, pp. 58-62; Thomas 1994, p. 374) have indicated that the probability of extinction increases with decreasing habitat availability. Although changes in the environment may cause populations to fluctuate naturally, small and low-density populations are more likely to fluctuate below a minimum viable population (the minimum or threshold number of individuals needed in a population to persist in a viable state for a given interval) (Gilpin and Soule 1986, pp. 25-33; Shaffer 1981, p. 131; Shaffer and Samson 1985, pp. 148-150).

The loss of genetic diversity in Ozark Hellbenders is illustrated by Routman's (1993, pp. 410-415) study, in which hellbender populations from different rivers demonstrated very little within-population variability, and relatively high between-population variability. Due to this population fragmentation, local extirpations cannot be naturally repopulated. Current factors negatively affecting the habitat of the Ozark Hellbender may exacerbate potential problems associated with its low population numbers and the isolation of those small populations from each other, which increases the chances of this subspecies going extinct or making it less able to recover or adapt to catastrophic events.

Genetic studies have repeatedly demonstrated very low genetic diversity in hellbender populations, which could contribute to the decline of the species through inbreeding depression (Kucuktas et al. 2001, p. 135). The current combination of population fragmentation, disease, and habitat degradation will prohibit this species from recovering without the intervention of conservation measures designed to facilitate hellbender recovery.

Recruitment and Reproductive Capability —The hellbender's late sexual maturity leads to a higher risk of death prior to reproduction and to lengthened generation times (Congdon et al. 1993, pp. 831-832). Hellbender specimens less than 5 years of age are uncommon (Taber et al. 1975, pp. 636-637; Pfingsten 1990, p. 49), and recent research has indicated that the age structure has shifted, resulting in the prevalence of older individuals (Pfingsten 1990, p. 49; Wheeler et al. 2003, pp. 153, 155).

Because hellbenders are long-lived, a population may seemingly not be highly dependent on recruitment to remain extant (Mayasich et al. 2003, p. 22). Empirical and theoretical evidence suggests, however, that overlapping generations within a population (high survivorship among juveniles) is necessary to maintain stable populations (Congdon et al. 1993, pp. 830-832) and maintain genetic diversity by facilitating gene flow among older and younger individuals (Ellner and Hairston 1994, pp. 413-415). Wheeler et al. (2003, p. 155) postulated that the lack of sufficient recruitment may have impeded the population stability of Ozark Hellbenders and the ability of the populations to maintain genetic diversity.

Pfingsten (1990, p. 49) cautioned that lack of larvae detection could mean that larvae occupy a microhabitat that has yet to be surveyed. However recent information indicates that the lack of larvae and juveniles in populations is not a function of survey technique, but instead reflects a true reduction in recruitment (Lipps 2010, pers. comm.; Phillips 2010, pers. comm.).

Unger (2003, pp. 30-36) compared several measures of sperm production between male Ozark and Eastern hellbenders in Missouri and Eastern Hellbender males from more stable populations in North Carolina and Georgia. Sperm counts were significantly lower for males from both tested Missouri populations than for males from southeastern populations. Populations were not significantly different with respect to sperm viability and motility. The sperm of Missouri males had proportionally smaller heads for their tail lengths; this difference was relatively small, but was statistically significant. Because motility and viability appeared unaffected, artificial fertilization might be a viable conservation technique, however, limited efforts to date have been successful (Unger 2003, pp. 65-66).

The extremely low number or lack of juveniles in most Ozark Hellbender populations is a significant sign that little reproduction has occurred in these populations for several years. Late age of reproductive maturity, when paired with a long lifespan, can disguise population declines resulting from activities that occurred years earlier until the adults begin dying and numbers begin declining from lack of recruitment. The present distribution and status of Ozark Hellbender populations in the White River system in Arkansas and Missouri are exhibiting such a decline (Wheeler et al. 2003, p. 155).

Climate Change —Because the Ozark Hellbender is an aquatic salamander totally dependent upon an adequate water supply and has specific habitat requirements ( i.e., dissolved oxygen and low water temperatures); we expect that climate change could significantly alter the quantity and quality of hellbender habitat and thus impact the species in the future. Potential adverse effects from climate change include increased frequency and duration of droughts (Rind et al. 1990, p. 9983; Seager et al. 2007, pp. 1181-1184; Rahel and Olden 2008, p. 526) and an increased virulence of nonnative parasites and pathogens to native species from warming temperatures (Rahel and Olden 2008, p. 525). If the health of hellbenders is already compromised by other environmental stressors, elevated water temperatures could increase susceptibility to bacterial and fungal infections, especially for those hellbenders infected with Bd (Wanner 2011, pers. comm.).

Climate warming may also decrease groundwater levels (Schindler 2001, p. 22) or significantly reduce annual stream flows (Moore et al. 1997, p. 925; Hu et al. 2005, p. 9); while the increased drought conditions and prolonged low flows associated with climate change may favor the establishment and spread of nonnative species (Rahel and Olden 2008, pp. 526, 529-530). Low or interrupted stream flows could have devastating effects on Ozark Hellbenders populations by causing direct mortality from desiccation (during periods of interrupted flows) and reduced fitness and reproduction due to stress, decreased prey availability, and lower dissolved oxygen. Additionally, it is projected that stream basin discharges may be further impacted by synergistic effects of changes in land cover and climate change in the Missouri Ozarks (Hu et al. 2005, p. 9).

The small size and isolation of Ozark Hellbender populations, loss of genetic diversity, lack of recruitment, and potential effects from climate change could exacerbate other factors negatively affecting the subspecies and increase the risk of extinction. These additional factors are particularly detrimental when combined with other threats affecting the hellbender, such as of habitat loss, water quality degradation, chytridiomycosis, and unauthorized collection and trade. In addition, effects from some threats likely interact synergistically to enhance effects from other factors (for example, compromised health from water quality or pathogen issues may increase predation risks).

Although no clear estimates exist for how many Ozark Hellbenders historically inhabited Missouri and Arkansas, surveys over recent years have documented a severe decline in all populations. To illustrate this decline, consider the current total range-wide population estimate of 590 (Briggler et al. 2007, p. 83) compared to the results of one 1973 study indicating approximately 1,150 hellbenders within less than 1.2 mi (2 km) of one occupied river (Nickerson and Mays 1973b, p. 1165).

In addition to the severe population declines, the known factors negatively affecting and subsequent threats to the Ozark Hellbender have continued to increase since we elevated the species to candidate status in 2001 (66 FR 54808; October 30, 2001). In particular, the discovery of the presence of Batrachochytrium dendrobatidis (chytridiomycosis) in 2006 within all remaining populations of the Ozark Hellbender has made increased protection even more important to persistence of this subspecies (Utrup 2007, pers. comm.).

The decrease in Ozark Hellbender population size and the shift in age structure are likely caused in part by a variety of historical and ongoing activities. It is believed that one of the primary causes of these trends is habitat destruction and modification from siltation and water quality degradation. The sources include industrialization, agricultural runoff from livestock production and pasture land, mine waste, and activities related to timber harvesting. Increased siltation affects hellbenders in a variety of ways, such as suffocating eggs, eliminating suitable habitat for all life stages, reducing dissolved oxygen levels, increasing contaminants (that bind to sediments), and reducing prey populations. Trout stocking continues to occur on hellbender streams both in Missouri and Arkansas. The reduced numbers of larval and subadult hellbenders observed may be attributed to predation by nonnative trout. Increased nitrate levels, along with a variety of other contaminants from agricultural runoff and increased urbanization, have been detected in hellbender streams, which not only negatively affects hellbenders directly but also the Ozark aquatic ecosystems in general. Impoundments alter habitat directly, isolate populations, change water temperatures and flows below reservoirs, and increase predation at sites immediately above reservoirs. Remaining Ozark Hellbender populations are small and isolated, in part due to reservoir construction that makes hellbenders vulnerable to individual catastrophic events and reduces the likelihood of recolonization after localized extirpations.

Recreational pressure (for example, boat traffic, horseback riding, and ORV use) in streams inhabited by Ozark Hellbenders has increased substantially on an annual basis, directly disturbing the habitat. Fish and frog gigging popularity and pressure continue to increase, presenting a threat to hellbenders during the breeding season (Nickerson and Briggler 2007, pp. 209-211). The increase in number or size of recreational boats and inner tubes, commercial horse trail ride outfitters, and ORV use has increased disturbance and contamination (for example, fecal coliform).

The unauthorized collection of hellbenders, especially for the pet trade, remains a major concern, particularly with market values continually increasing. Existing regulations targeting this significant threat, including State laws, have not been completely successful in preventing the unauthorized collection and trade of Ozark Hellbenders.

The combined impact of degraded environmental conditions, along with the possible increased susceptibility to chytridiomycosis due to these threats, has created a situation in which the Ozark Hellbender is currently in danger of extinction throughout all of its range. Researchers and managers agree that, while a solution will hopefully be reached to directly address the presence of the chytrid fungus within Ozark Hellbender populations, all other factors significantly affecting the hellbender must be ameliorated to prevent the imminent extinction of this subspecies.

Based on an August 2006 PHVA model, hellbender experts concluded that the Ozark Hellbender metapopulations are expected to decline by more than 50 percent in 12 to 16 years, the viability of all individual populations will be significantly reduced within 20 to 25 years with estimates of fewer than 100 individuals, and a reduction in genetic diversity by as much as 90 percent will occur. These projections may be optimistic because they are based on best-case density estimates and assume that hellbender populations within each river system are continuous, and the prevalence of chytrid fungus and its possible effects on hellbenders was not taken into consideration. Hellbenders do not travel great distances, however, and subpopulations within each river system are often separated by miles (kilometers) of unsuitable habitat resulting in fragmented populations. These models projected the Ozark Hellbender subspecies to be functionally extinct within 20 years (Briggler et al. 2007, pp. 88-90 and 97).

We determine foreseeable future on a case-by-case basis, taking into consideration a variety of species-specific factors such as lifespan, genetics, breeding behavior, demography, threat-projection timeframes, and environmental variability. Based on the observed population decline in the subspecies and the threats as discussed, we find that the Ozark Hellbender is currently in danger of extinction throughout all of its range.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Ozark Hellbender. Section 3 of the Endangered Species Act defines an endangered species as “* * * any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as “* * * any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Due to multiple threats to the Ozark Hellbender and the ongoing population decline, this subspecies is increasingly threatened with extinction. Based on the immediate and ongoing significant threats to the subspecies throughout its entire range, we find the subspecies to be in danger of extinction throughout all of its range. Therefore, the Ozark Hellbender meets the definition of an endangered species under the Act, rather than a threatened species because the threats are occurring now, making the subspecies in danger of extinction at the present time. Because threats extend throughout the entire range, it is unnecessary to determine if the Ozark Hellbender is in danger of extinction throughout a significant portion of its range. Therefore, on the basis of the best scientific and commercial information available, we are listing the Ozark Hellbender as an endangered species throughout its entire range.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following circumstances exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. We have determined that both circumstances apply to the Ozark Hellbender. This determination involves a weighing of the expected increase in threats associated with a critical habitat designation against the benefits gained by a critical habitat designation. An explanation of this “balancing” evaluation follows.

The unauthorized collection of Ozark Hellbenders for the pet trade is a factor contributing to hellbender declines (Nickerson and Briggler 2007, p. 214) and remains a significant threat today, particularly with increasing international market values. For a detailed discussion on the threat of commercial collection, see factor B (Overutilization for commercial, recreational, scientific, or educational purposes).

The process of designating critical habitat would increase human threats to the Ozark Hellbender by increasing the vulnerability of this species to unauthorized collection and trade through public disclosure of its locations. Designation of critical habitat requires the publication of maps, and a very specific narrative description of critical habitat areas in the Federal Register . The degree of detail in those maps and boundary descriptions is far greater than the general location descriptions provided in this final rule to list the species as endangered. Furthermore, a critical habitat designation normally results in the news media publishing articles in local newspapers and special interest Web sites, usually with maps outlining critical habitat. We believe that the publication of maps and descriptions outlining the locations of this critically imperiled taxon will further facilitate unauthorized collection and trade, as collectors will know the exact locations where Ozark Hellbenders occur. Supporting our concern is an instance of illegal collection of a federally listed North Carolina mountain plant immediately following the publication of critical habitat maps (USFWS 2001; pp. 51448-51449). With critical habitat maps in hand, collectors visited local Forest Service district offices and asked directions to the sites. Because the plant was not previously known to be desired by rare plant collectors and had never been offered for sale in commercial trade, there was no likely cause for concern. However, following the visit by collectors, several plants were discovered missing. The actual removal of the plants could be documented because each individual plant had previously been mapped, and the carefully covered excavations where plants had been removed could be discerned.

Given that the current population estimate for Ozark Hellbenders is very small, the removal of even a few individuals from a particular habitat patch could cause local extirpations in those patches. If individual patches are lost, populations within each river become more fragmented, and the likelihood of gene flow is reduced.

Ozark Hellbenders are easily collected because they are slow moving and have extremely small home ranges. Therefore, publishing specific location information would provide a high level of assurance that any person going to a specific location would be able to successfully locate and collect specimens. In addition, the majority of past collecting events have involved individuals travelling from other States to collect Ozark Hellbenders. Publication of critical habitat maps would allow these individuals to more efficiently and effectively target collecting sites by delineating all the occupied areas within the Ozark Hellbender range. It is commonly known that hellbenders are found by surveying specific habitats and over-turning rocks of certain dimensions. In designating critical habitat, those specific habitat features would be described in detail, and maps would disclose the specific sections of streams where collectors could look to capture hellbenders. Furthermore, the detailed information in a critical habitat designation would provide collectors with more information than is currently available to them through previously published reports. Those previously published reports no longer contain current information on the location of Ozark Hellbenders, and those reports only disclose locations for a small portion of the total number of hellbender sites.

Due to the threat of unauthorized collection and trade, the Missouri Department of Conservation and the Arkansas Game and Fish Commission have implemented extraordinary measures to control and restrict information on the locations of Ozark Hellbenders. These agencies have expressed to the Service serious concerns with publishing maps and boundary descriptions of Ozark Hellbender areas associated with critical habitat designation (Briggler and Irwin 2008, pers. comm.; Ziehmer 2010, pers. comm.). State hellbender experts believe that designating critical habitat could negate their efforts to restrict access to locality data that could significantly affect future efforts to control the threat of unauthorized collection and trade of Ozark Hellbenders.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Decisions by the 5th and 9th Circuit Court of Appeals have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442F (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain those physical and biological features that relate to the ability of the area to periodically support the species) to serve its intended conservation role for the species.

Critical habitat only provides protections where there is a Federal nexus, that is, those actions that come under the purview of section 7 of the Act. Critical habitat designation has no application to actions that do not have a Federal nexus. Section 7(a)(2) of the Act mandates that Federal agencies, in consultation with the Service, evaluate the effects of their proposed action on any designated critical habitat. Similar to the Act's requirement that a Federal agency action not jeopardize the continued existence of listed species, Federal agencies have the responsibility not to implement actions that would destroy or adversely modify designated critical habitat. Critical habitat designation alone, however, does not require that a Federal action agency implement specific steps toward species recovery.

The species occurs exclusively on private lands in Arkansas. In Missouri, Ozark Hellbenders occur primarily on lands managed by the National Park Service (Ozark National Scenic Riverways) and U.S. Forest Service (Mark Twain National Forest). We anticipate that some actions on non-Federal lands will have a Federal nexus (for example, requirement for a permit to discharge dredge and fill material from the U.S. Army Corps of Engineers) for an action that may adversely affect the hellbender. There is also the potential that some proposed actions by the National Park Service and U.S. Forest Service may adversely affect the hellbender. However, both of these Federal agencies are implementing measures to ensure the conservation and recovery of the hellbender on lands they manage, including active involvement in the Ozark Hellbender Working Group.

In those circumstances where it has been determined that a Federal action (including actions involving non-Federal lands) may affect the hellbender, the action would be reviewed under section 7(a)(2) of the Act. We anticipate that the following Federal actions are some of the actions that could adversely impact the Ozark Hellbender: Instream dredging, channelizing, impounding water, streambank clearing, moving large rocks within or from streams, discharging fill material into the stream, or discharging or dumping toxic chemicals or other pollutants into a hellbender stream system. Under section 7(a)(2) of the Act, project impacts would be analyzed, and the Service would determine if the Federal action would jeopardize the continued existence of the hellbender. The designation of critical habitat would require a Federal agency to determine if their proposed action would likely result in the destruction or adverse modification of critical habitat. Consultation with respect to critical habitat will provide additional protection to a species only if the agency action would result in the destruction or adverse modification of the critical habitat but would not jeopardize the continued existence of the species. In the absence of critical habitat, areas that support the Ozark Hellbender will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as appropriate. Federal actions affecting the hellbender even in the absence of designated critical habitat areas will still benefit from consultation pursuant to section 7(a)(2) of the Act and may still result in jeopardy findings.

Another potential benefit to the Ozark Hellbender from designating critical habitat is that such a designation serves to provide technical assistance and information to landowners, State and local governments, and the public regarding the potential conservation value of an area. Generally, providing this information helps focus and promote conservation efforts by other parties by clearly delineating areas of high conservation value for the affected species. Simply publicizing the proposed listing of the species also serves to notify and provide technical assistance and information to landowners, State and local governments, and the public regarding important conservation values. However, the Ozark Hellbender Working Group has developed a comprehensive outreach and education program that targets a diverse audience, including public and private landowners, organizations, and the media (OHWG 2010, pp. 11-12).

The Ozark Hellbender Working Group, formed in 2001, is composed of personnel from Federal and State agencies, academia, zoos, nonprofit organizations, and private individuals. The Ozark Hellbender outreach actions implemented to date include producing and distributing stickers, posters, and videos; publishing magazine articles; working with media outlets (newspaper and television) on hellbender stories; giving presentations to local County Commissioners and other community groups; providing a profile of the Ozark Hellbender in the Missouri Department of Conservation's Fishing Regulations Pamphlet; and providing annual technical assistance to volunteers like the Missouri Department of Conservation's Stream Teams working in hellbender streams. In view of the extensive, ongoing efforts to outreach and promote Ozark Hellbender conservation, we believe that the designation of critical habitat would provide limited additional outreach value.

Upon reviewing the available information, we have determined that the designation of critical habitat would increase the threat to Ozark Hellbenders from unauthorized collection and trade. We believe that the risk of increasing this significant threat by publishing location information in a critical habitat designation outweighs the benefits of designating critical habitat.

A limited number of U.S. species listed under the Act have commercial value in trade. The Ozark Hellbender would be one of them. Due to the market demand and willingness of individuals to collect hellbenders without authorization, we believe that any action that publicly discloses the location of hellbenders (such as critical habitat) puts the species in further peril. Because Ozark Hellbenders are in danger of extinction, a focused and comprehensive approach to reducing threats is required. Several measures are currently being implemented to address the threat of unauthorized collection and trade of hellbenders, and additional measures will be implemented once this listing determination is in effect. One of the basic measures to protect hellbenders from unauthorized collection and trade is restricting access to information pertaining to the location of Ozark Hellbenders. Publishing maps and narrative descriptions of Ozark Hellbender critical habitat would significantly affect our ability to reduce the threat of unauthorized collection and trade.

Therefore, based on our determination that critical habitat designation would facilitate an increased threat of illegal take and collection of the Ozark Hellbender, we find that the potential negative impacts associated with the designation of critical habitat outweigh any benefit of designation.

We have determined that the designation of critical habitat could facilitate unauthorized collection and subsequent illegal trade of the Ozark Hellbender. The Ozark Hellbender is valued in the pet trade, and that value is likely to increase as the species becomes rarer. Although critical habitat designation may provide some benefits to the conservation of the Ozark Hellbender by highlighting areas important for conservation, such benefits would be minimal. We have concluded that, even though some benefit from designation may exist, the increased threat to the Ozark Hellbender from unauthorized collection and illegal trade outweighs any benefit to the taxon. A determination not to designate critical habitat also supports the measures taken by the States to control and restrict information on Ozark Hellbender and no longer to make locality data and survey information readily available to the public. We have, therefore, determined that it is not prudent to designate critical habitat for the Ozark Hellbender, because the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition of the species and its status by the public, landowners, and other agencies; recovery actions; requirements for Federal protection; and prohibitions against certain practices. Recognition through listing results in public awareness of the conservation status of the species and encourages conservation actions by Federal and State governments, private agencies and groups, and individuals. The Act provides for possible land acquisition and cooperation with the States and calls for recovery actions to be carried out. The protection required of Federal agencies and the prohibitions against taking and harm are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to any species that is listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. If a species is listed subsequently, section 7(a)(2) requires Federal agencies, including the Service, to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or to destroy or adversely modify its critical habitat if any has been designated. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with us.

Federal agency actions that may require conference or consultation for the Ozark Hellbender as described in the preceding paragraph include, but are not limited to: stream alterations, development of new waste water facilities that may impact water quality, stream bank clearing, timber harvesting, construction of recreational trails and facilities adjacent to streams, water withdrawal projects, pesticide registration and usage, agricultural assistance programs, mining, road and bridge construction, Federal loan programs, and any federally funded activities. Activities will trigger consultation under section 7 of the Act if they may affect the Ozark Hellbender as addressed in this rule. Under Section 7(a)(1) and during formal consultation procedures under Section 7(a)(2), the Service, in cooperation with Federal agencies, may outline conservation measures that can provide benefits to the Ozark Hellbender.

The listing of the Ozark Hellbender initiates the development and implementation of a rangewide recovery plan for this species. A recovery plan establishes a framework for interested parties to coordinate activities and to cooperate with each other in conservation efforts. The plan will set recovery priorities, outline future research needs, identify possible partners, and estimate the costs of the tasks necessary to accomplish the priorities. It will also describe site-specific management actions necessary to conserve the Ozark Hellbender. Additionally, under section 6 of the Act, we will be able to grant funds to the States of Missouri and Arkansas for management actions, research studies, or propagation needs that may be necessary for the conservation of the Ozark Hellbender. During State environmental review processes in Missouri and Arkansas, BMPs can be provided to reduce any potential impacts to Ozark Hellbenders and Ozark Hellbender habitat. Finalizing the rule to add Ozark and Eastern Hellbenders to Appendix III of CITES will contribute to the conservation of Ozark Hellbender by discouraging the unauthorized collection and illegal trade of hellbenders.

The Act and its implementing regulations found at 50 CFR 17.21 and 17.31 set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. As such, these prohibitions will be applicable to the Ozark Hellbender. The prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import or export, deliver, receive, carry transport, or ship in interstate or foreign commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Further, it is illegal for any person to attempt to commit, to solicit another person to commit, or to cause to be committed, any of these acts. Certain exceptions apply to our agents and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving threatened and endangered wildlife under certain circumstances. We codified the regulations governing permits for endangered and threatened species at 50 CFR 17.22 and 17.32. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in the course of otherwise lawful activities.

It is our policy, published in the Federal Register on July 1, 1994 (59 FR 34272), to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act and associated regulations at 50 CFR 17.31. The intent of this policy is to increase public awareness of the effect of this listing on proposed and ongoing activities within a species' range. We believe that the following activities are unlikely to result in a violation of section 9 of the Act:

(1) Activities authorized, funded, or carried out by Federal agencies, when such activities are conducted in accordance with an incidental take statement issued by us under section 7 of the Act;

(2) Any action carried out for scientific research or to enhance the propagation or survival of Ozark Hellbenders that is conducted in accordance with the conditions of a 50 CFR 17.22 permit;

(3) Any incidental take of Ozark Hellbenders resulting from an otherwise lawful activity conducted in accordance with the conditions of an incidental take permit issued under 50 CFR 17.22. Non-Federal applicants may design a habitat conservation plan (HCP) for the species and apply for an incidental take permit. HCPs may be developed for listed species and are designed to minimize and mitigate impacts to the species to the maximum extent practicable.

We believe the following activities will likely be considered a violation of section 9; however, possible violations are not limited to these actions alone:

(1) Unauthorized pursuing, or attempting to pursue, killing, collecting, handling, or harassing of individual Ozark Hellbenders at any life stage;

(2) Sale or offer for sale of any Ozark Hellbender as well as delivering, receiving, carrying, transporting, or shipping any Ozark Hellbender in interstate or foreign commerce and in the course of a commercial activity;

(3) Unauthorized destruction or alteration of the species habitat (for example, instream dredging, channelizing, impounding of water, streambank clearing, removing large rocks from or disturbing large rocks within streams, or discharging fill material) that actually kills or injures individual Ozark Hellbenders by significantly impairing their essential behavioral patterns, including breeding, feeding, or sheltering;

(4) Violation of any discharge or water withdrawal permit within the species' occupied range that results in the death or injury of individual Ozark Hellbenders by significantly impairing their essential behavioral patterns, including breeding, feeding, or sheltering; and

(5) Discharge or dumping of toxic chemicals or other pollutants into waters supporting the species that actually kills or injures individual Ozark Hellbenders by significantly impairing their essential behavioral patterns, including breeding, feeding, or sheltering.

We will review other activities not identified above on a case-by-case basis to determine whether they may be likely to result in a violation of section 9 of the Act. We do not consider these lists to be exhaustive and provide them as information to the public.

You should direct questions regarding whether specific activities may constitute a future violation of section 9 of the Act to the Field Supervisor of the Service's Columbia Field office (see ADDRESSES ). You may request copies of the regulations regarding listed wildlife from and address questions about prohibitions and permits to the U.S. Fish and Wildlife Service, Ecological Services, 5600 American Blvd. West, Suite 990, Bloomington, MN 55437; Phone 612-713-5350; Fax 612-713-5292.

This rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency 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.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), need not be prepared in connection with regulations adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of all references cited in this rule is available on the Internet at http://www.regulations.gov or upon request from the Field Supervisor, Columbia, Missouri Ecological Services Field Office (see ADDRESSES ).

The primary author of this final rule is staff of the Columbia (Missouri) Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:

Background

On September 8, 2010, we published in the Federal Register (75 FR 54579) a document proposing the listing of the hellbender ( Cryptobranchus alleganiensis ), including its two subspecies, the eastern hellbender ( Cryptobranchus alleganiensis alleganiensis ) and the Ozark hellbender ( Cryptobranchus alleganiensis bishopi ), in Appendix III of CITES. We accepted public comments on that proposal for 60 days, ending November 8, 2010. We have reviewed and considered all public comments we received on the proposed rule (see the Summary of Comments and Our Responses section below). Our final decision reflects consideration of the information and opinions we have received.

The hellbender ( Cryptobranchus alleganiensis ) is a large aquatic salamander attaining a maximum length of 29 inches (74 centimeters) (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 (20 °Celsius) (Stuart et al. 2008, p. 636). Although two hellbender subspecies are recognized, the eastern hellbender and the Ozark hellbender, the taxonomic differentiation between hellbender subspecies is not 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).

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). Irrespective of the taxonomic differentiation of hellbenders, all currently recognized hellbender subspecies of Cryptobranchus alleganiensis are included in this CITES Appendix- III listing. For further information about hellbenders, you may refer to our proposed rule published in the Federal Register on September 8, 2010 (75 FR 54579).

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 Web site at http://www.cites.org or upon request from the Division of Management Authority at the address provided in the ADDRESSES section 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 10462, 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 CITES Appendices I and II. The current U.S. CITES regulations (50 CFR part 23) took effect on September 24, 2007.

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, or to transfer a species between these two Appendices, 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 unilaterally at any time, 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 may remove the species from Appendix III without consulting the other CITES Parties, although consultation with other range countries is recommended prior to adding or removing a species to Appendix III.

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, particularly by preventing trade in illegally acquired specimens. 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 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.

(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 and humane treatment of the animals while they are in transport.

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, 14th and 15th meetings of the CoP), which provides additional guidance to Parties regarding listing species in Appendix III. The Resolution provides specific criteria for listing species in Appendix III, and we have adopted these criteria in our CITES-implementing regulations (50 CFR 23.90(c)), which state that, for a Party to list a species in Appendix III, all of the following criteria must be met:

(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.

We have complied with the criteria outlined in 50 CFR 23.90(c) as follows:

23.90(c)(1): Hellbenders are native to the United States.

23.90(c)(2): Hellbenders occur in Alabama, Arkansas, Georgia, Illinois, Indiana, Kentucky, Maryland, Mississippi, Missouri, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia. Hellbenders are regulated by State laws and regulations throughout their range. In most States, the species is protected and take is generally prohibited. For further information on the conservation status of hellbenders, you may refer to our proposed rule published in the Federal Register on September 8, 2010 (75 FR 54579).

23.90(c)(3): We have documented hellbenders in international trade. 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). Listing all hellbenders in Appendix III would enlist the assistance of other Parties in our efforts to monitor and control trade in hellbenders.

23.90(c)(4): Because hellbenders are endemic to the United States, consultation with other range countries is not applicable. Although we have documented hellbenders in international trade, the information on the number of hellbenders that enter international trade is limited to such an extent that there are no known major importers of hellbenders. We have consulted with the CITES Secretariat and the Animals Committee regarding our proposal to list hellbenders in Appendix III. The Secretariat and the Animals Committee have informed us that our proposal to list hellbenders in Appendix III is consistent with Resolution Conf. 9.25 (Rev. CoP15) and they have not raised any objections to this proposed listing.

For further information about the listing process, you may refer to our proposed rule published in the Federal Register on September 8, 2010 (75 FR 54579).

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, a non-detriment finding is not 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 assess whether 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.

To apply for a CITES permit, an applicant is required to furnish to DMA a completed CITES export permit application (with a check or money order to cover the cost of processing the application). You may obtain information about permits for international trade in this species and its subspecies by contacting the U.S. Fish and Wildlife Service, Division of Management Authority, Branch of Permits, 4401 N. Fairfax Drive, Room 212, Arlington, VA 22203; telephone: 703-358-2104 or 800-358-2104; facsimile: 703-358-2281; e-mail: managementauthority@fws.gov; Web site: http://www.fws.gov/international/index.html. We will review the application to decide if the export meets the criteria in 50 CFR part 23.

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 the ADDRESSES section above); additional information on declaration of shipments, inspection, and clearance of shipments is available upon request from OLE at: 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; e-mail: lawenforcement@fws.gov; Web site: http://www.fws.gov/le. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

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.

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 endangered or threatened, but for which persuasive data were 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 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 of the Ozark hellbender 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.

On September 8, 2010, we published two documents in the Federal Register : (1) A proposed rule to list the Ozark hellbender as federally endangered under the Endangered Species Act of 1973, as amended (75 FR 54561); and (2) a proposed rule to list the hellbender, including its two subspecies, the eastern hellbender ( Cryptobranchus alleganiensis alleganiensis ) and the Ozark hellbender, in Appendix III of CITES (75 FR 54579). The proposed CITES Appendix-III listing includes live and dead whole specimens, and all readily recognizable parts, products, and derivatives of the species and its subspecies.

In our proposed rule (September 8, 2010; 75 FR 54579), we asked all interested parties to submit comments or suggestions, particularly 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).

The comment period for the proposed rule lasted for 60 days, ending November 8, 2010. We received a total of 17 comments during the comment period. We received comments from seven State agencies, seven private individuals providing five comments, three zoos, one Federal agency, and one nongovernment organization. Of these commenters, 16 supported the proposal, and 1 expressed support for restoring the Ozark hellbender population; no commenters opposed the CITES Appendix-III listing of the hellbender and its subspecies. Comments pertained to several key issues. These issues, and our responses, are discussed below.

Issue 1: Several commenters provided supporting data and information regarding the biology, range, distribution, life history, threats, and current conservation efforts affecting hellbenders.

Our Response: We thank all the commenters for their interest in the conservation of hellbenders and thank those commenters who provided information for our consideration in making this CITES Appendix-III listing determination. Some information submitted was duplicative of the information contained in the proposed rule; some comments contained information that provided additional clarity or support to information contained in the proposed rule.

The New York Division of Fish, Wildlife & Marine Resources (DFWMR) commented that the eastern hellbender is present in just two watersheds and is in serious decline in the State of New York. DFWMR reports that estimates of hellbender populations at historic locations in one watershed have shown declines of 44 percent from as recently as the 1980s and that a recent basin-wide survey in the other watershed turned up only two individual hellbenders at sites occupied by numerous hellbenders as recently as the 1990s.

The West Virginia Division of Natural Resources Wildlife Resources Section (WVDNR Wildlife Resources) commented that it surveyed 23 known sites for the eastern hellbender during the summer of 2010. WVDNR Wildlife Resources found hellbenders occurring at just 12 of the 23 sites and reports that sedimentation is one of the greatest threats to hellbenders in West Virginia.

The Tennessee Wildlife Resources Agency (TWRA) commented that hellbender populations in middle Tennessee appearing healthy in the early to mid-1990s were in obvious decline in the last decade. TWRA reports that the cause of this decline is uncertain but that habitat degradation from anthropogenic sources appears to be a contributing factor. Further, TWRA reports that, although hellbender populations in eastern Tennessee are more abundant and more widely distributed than those in middle Tennessee, several of those hellbender populations may be declining similarly to those in middle Tennessee.

The Georgia Department of Natural Resources Wildlife Resources Division (GADNR) commented that the known distribution of the eastern hellbender in Georgia is largely confined to watersheds within the Tennessee River drainage. GADNR reports that a 2005 survey of stream segments in 21 different locations in the proximity of historic hellbender occurrence records found hellbenders occurring in 13 locations, 9 of which were thought to be habitats sustaining healthy hellbender populations. Hellbenders were not found at eight of the sites sampled, suggesting extirpation or significant declines of hellbender populations within these watersheds. GADNR provided information indicating that sedimentation originating from unimproved road surfaces, makeshift campsites along stream banks, past agricultural practices, and other forms of land disturbance have impacted numerous hellbender streams, with some streams degraded to such an extent that they may never again support hellbenders.

The Missouri Department of Conservation (MDC) commented that population numbers of both the Ozark and eastern hellbender subspecies continue to decline since the 1970s and have shifted in age structure, with large, mature individuals being most prevalent and young age classes being virtually absent. MDC reports that population viability models show that all hellbender populations have a high probability of extinction in the future.

The North Carolina Zoological Park (NCZP) commented that, since 2004, it has collaborated with the North Carolina Wildlife Commission to survey four of the five North Carolina river drainage systems known to support hellbender populations. NCZP surveys found hellbenders completely absent from at least 10 sites where they occurred historically and found numerous other sites with significantly depleted hellbender populations. NCZP surveyed several sites that continue to support large hellbender populations with normal age-class distributions, which indicates populations are stable at these sites. However, several other sites surveyed by NCZP maintained hellbender communities with abnormal age-class distributions. These sites contained large numbers of adult hellbenders without juveniles or larvae present or with only small numbers of juveniles or larvae present. Accordingly, NCZP disputes the conclusions of two recent publications (Mayasich et al. 2003 and Briggler et al. 2007) that characterize hellbender populations in North Carolina as stable.

Issue 2: Several comments concerned trade and the illegal collection of hellbenders. WVDNR Wildlife Resources commented that, while hellbenders have no legal protection in West Virginia, hellbenders can be illegally collected from States bordering West Virginia, and that if the collector is confronted by law enforcement, the collector could fraudulently state that the hellbenders were legally taken in West Virginia. Similarly, one commenter stated that, with at least one State allowing for the commercial take of hellbenders, exporters are provided a loophole by which all exported hellbenders may be easily declared as having been collected legally from a State allowing commercial take. GADNR commented that informal surveys over the past 10 years of a hellbender population at a location anecdotally reputed to be a location for illegal collection of hellbenders for the pet trade suggest a recent population decline resulting at least in part from illegal collection. Citing an internet blog posting, MDC commented that illegal collection of and trade in hellbenders may be on the rise. MDC commented further that a participant from Japan at the 4th Hellbender Symposium held in Corbin, Kentucky, in 2009 provided some relevant information relating to the high demand for U.S. hellbenders in Japan.

Our Response: Existing State laws have not been completely successful in preventing the unauthorized collection of and trade in hellbenders. A CITES Appendix-III listing will 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 hellbenders in CITES Appendix III will enlist the assistance of other Parties in our efforts to monitor and control trade in this species.

Issue 3: Two comments concerned the threat of chytridiomycosis (also known as chytrid fungus disease). WVDNR Wildlife Resources commented that hellbenders from two counties in 2010 were positive for chytrid fungus and that, given the virulent nature of this pathogen and the consequences of shipping it worldwide, any hellbenders originating from West Virginia should be quarantined and tested (at the exporter's expense) or confiscated.

Our Response: Our September 8, 2010, proposed rule (75 FR 54579) did not specifically address chytridiomycosis, a highly infectious amphibian disease caused by the pathogen Batrachochytrium dendrobatidis, as a threat to hellbenders, but rather directed those interested in more information on the threats contributing to the decline of hellbenders to see our proposal to list the Ozark hellbender as federally endangered (75 FR 54561) under the Endangered Species Act of 1973, as amended, which published on the same day as our proposed rule to include hellbenders in CITES Appendix III. We agree that chytrid fungus is recognized to have a significant negative effect on hellbenders. However, unless a State or Federal law specifically requires quarantine or testing because of the threat posed by chytrid fungus, a CITES Appendix-III listing will not address this particular threat.

Issue 4: One commenter suggested that hellbenders would be better protected if they were listed in CITES Appendix I or II, rather than Appendix III. While supporting an Appendix-III listing of both subspecies of hellbenders, the commenter requests that the Service propose listing the Ozark hellbender in Appendix I and the eastern hellbender in Appendix II at the next CoP. In addition, while the Maryland Department of Natural Resources (MDNR) commented that it fully supports an Appendix-III listing of hellbenders, MDNR further stated that it would be supportive of including hellbenders in Appendix I or Appendix II if these additional measures are deemed necessary in the future.

Our Response: To implement the Convention, the CITES Parties meet periodically to review what species in international trade should be regulated and other aspects of the implementation of CITES. Prior to a CoP, we solicit recommendations for amending Appendices I and II, as well as recommendations for resolutions, decisions, and agenda items for discussion at the CoP. We invite such recommendations via a notice published in the Federal Register that includes a public comment period. The appropriate time to request inclusion of the species in Appendix I or II is during that public comment period. We will publish in the Federal Register notices that, together with announced public meetings, provide an opportunity to participate in the development of the U.S. submissions to and negotiating positions for the next meeting of the Conference of the Parties to CITES (CoP16). Our regulations governing this public process are found in 50 CFR 23.87. CoP16 is tentatively scheduled to be held in Pattaya, Thailand, during March 3-16, 2013.

In the interim, international trade data and other relevant information gathered as a result of a CITES Appendix-III listing will help us determine whether we should propose the species for inclusion in Appendix I or II, remove it from Appendix III, or retain it in Appendix III. If, after monitoring the trade of any U.S. CITES 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.

Based on the recommendations contained in Resolution Conf. 9.25 (Rev. CoP15) and the listing criteria provided in our regulations at 50 CFR 23.90, analysis of the public comments received on our proposed rule (75 FR 54579), and all information available to us, the hellbender qualifies for listing in CITES Appendix III. Despite the protected status of hellbenders in many States, declines have been evident throughout the range of the hellbender. Listing hellbenders in CITES Appendix III 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.

Accordingly, we are listing the hellbender ( Cryptobranchus alleganiensis ), 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). The listing includes live and dead whole specimens, and all readily recognizable parts, products, and derivatives of this species and its subspecies. 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.

Our regulations at 50 CFR 23.90 require us to publish a proposed rule and a final rule for a CITES Appendix-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 final rule will 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.

Subsequent to today's publication in the Federal Register of this final rule to list this species and its subspecies in CITES Appendix III, we will notify the CITES Secretariat. An Appendix-III listing becomes effective 90 days after the Secretariat notifies the CITES Parties of the listing. The effective date of this rule has been extended to give the CITES Secretariat sufficient time to notify all Parties of the listing. The listing will take effect on the date listed in the DATES section of this document.

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.

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 will not have a significant effect on a substantial number of small entities for the reasons discussed below.

This final 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 final rule:

(a) Will not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions.

(c) Will 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.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), the Service makes the following findings:

(a) This rule will 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.”

(b) This rule will not impose a legally binding duty on non-Federal Government entities or private parties and will 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.

This final 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 will collect under this final 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 2/28/2014. 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.

This rule has been analyzed under the criteria of the National Environmental Policy Act, the Department of the Interior procedures for compliance with NEPA (Departmental Manual (DM) and 43 CFR 46), and Council on Environmental Quality regulations for implementing the procedural provisions of NEPA (40 CFR 1500-1508). This rule does not amount to a major Federal action significantly affecting the quality of the human environment. An environmental impact statement or evaluation is not required. This rule is a regulation that is of an administrative, legal, technical, or procedural nature, and its environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis under NEPA. The Service has determined that this rule is categorically excluded from further NEPA (42 U.S.C. 4321 et seq. ) review as provided by 516 DM 2, Appendix 1.9, of the Department of the Interior National Environmental Policy Act Revised Implementing Procedures and 43 CFR 46.210(i). No further documentation will be made.

In accordance with Executive Order (E.O.) 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have determined that this final rule will not have significant takings implications because there are no changes in what may be exported.

In accordance with E.O. 13132 (Federalism), this final rule will not have significant Federalism effects. A Federalism assessment is not required because this final rule will 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 final rule will generate information that will be beneficial to State wildlife agencies, it is not anticipated that any State monitoring or control programs will need to be developed to fulfill the purpose of this final rule. We have consulted the States, through the Association of Fish and Wildlife Agencies, on this 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.

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.

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 final rule will have no effect on Tribes or tribal lands.

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 final rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this final rule is not a significant energy action, and no Statement of Energy Effects is required.

A complete list of all references cited in this final 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 the ADDRESSES section above).

The primary author of this final rule is 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.

For the reasons given in the preamble, we amend Appendix III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) by adding the hellbender ( Cryptobranchus alleganiensis ), including its two subspecies, the eastern hellbender ( Cryptobranchus alleganiensis alleganiensis ) and the Ozark hellbender ( Cryptobranchus alleganiensis bishopi ). This listing includes live and dead whole specimens, and all readily recognizable parts, products, and derivatives of this species and its subspecies.

As a result of this action, exporters must obtain an export permit issued by the Service's Division of Management Authority, pack and ship live specimens according to the IATA Live Animals Regulations, and follow all applicable regulations pertaining to the export of wildlife, including declaration of the shipment to a Service wildlife inspector upon export.

The Southeast Alaska purse seine salmon fishery is a commercial fishery in Alaska state waters and adjacent Federal waters. It encompasses the commercial taking of salmon with purse seine gear, and participation is limited to fishermen designated by the Alaska Commercial Fisheries Entry Commission (CFEC). In 2008, a pilot capacity reduction program, conducted by the Southeast Revitalization Association (SRA), using a reverse auction, purchased 35 limited entry permits in the Southeast Alaska Salmon fishery, reducing the number of Alaska permits in this fishery to 380. Approximately 200 permits are currently being fished.

This rule implements a voluntary buyback program loosely modeled on the aforementioned Alaska pilot program.

This rule establishes the administrative process for the Program, including the role of the SRA, application procedures, evaluation of the Reduction Plan by NMFS, process for conducting a referendum, and fee payment and collection provisions.

This Program is different from the other industry financed fishing capacity reduction programs undertaken by NMFS in several aspects: (1) It is the first permit-only buyback, i.e., fishing history is not being retired and there are no restrictions on how the vessel to which the relinquished permit applies can be used; (2) there are no Federal permits involved, whereas all other NMFS supported reduction programs have included the buying and relinquishing of Federal permits; and (3) it is anticipated to attract mainly latent permits.

The Southeast Alaska purse seine salmon fishery is managed under Alaska law and regulatory requirements defined under Title 5 Alaska Administrative Code Section 33.100. The Alaska Department of Fish & Game (ADF&G) develops and implements conservation measures for this fishery and a state limited entry permit issued by the CFEC is required for participation in the fishery. The authority for the SRA to conduct this Program is Alaska Statute 16.40.250.

The measures contained in this rule to establish the Program are based on the Consolidated Appropriations Act of 2005 (Section 209 of Title II of Division B of Pub. L. 108-447). Subsequently, that Federal law was amended by Section 121 of Public Law 109-479 (the Magnuson-Stevens Reauthorization Act of 2006), reducing the loan amount to no more than a $25 million 40-year loan (with repayment fees capped at three percent) and clarifying the respective roles of NMFS and the SRA relative to development and implementation of the Program. On December 26, 2007, Public Law 110-161 appropriated $235,000 for the cost of guaranteeing the loan amount ( i.e., loan subsidy cost). Due to a 6.1 percent rescission to meet Congressional budgetary limits, the original appropriation of $250,000 was reduced to $234,765, thus lowering the maximum loan ceiling to $23,476,500. NMFS' authority to make this loan resides in sections 1111 and 1112 of the Merchant Marine Act, 1936 (46 App. U.S.C. 1279(f) and 1279(g) (MMA) (title XI)).

The Federal statute authorizing this Program waives all of the fishing capacity reduction program requirements of the Magnuson-Stevens Act (Sections 312(b)-(e)) codified at 16 U.S.C. 1801 et seq. except for Sections (b)(1)(C) and (d) which state: (1) It must be cost-effective; and (2) it is subject to a referendum approved by a majority of permit holders.

Unlike buybacks conducted under Federal statutes where permits are permanently revoked, under the Alaska Constitution the state may reissue permits in the future if the fishery becomes too exclusive. An “optimum number” study by the CFEC would be required before any decision could be made on whether the fishery has become too exclusive. There is no direct management of this fishery by NMFS or any other Federal agency.

Participation in the Program is voluntary and is open to any holder of a valid entry permit issued by the CFEC to operate in the Southeast Alaska purse seine salmon fishery. The Program is essentially divided into six phases: (1) Enrollment; (2) bid selection; (3) plan submission and approval; (4) referendum; (5) implementation; and (6) the loan repayment fee collection. Each of these six phases will be discussed later in this preamble. Only Southeast Salmon Purse Seine Entry Permits voluntarily submitted for removal from the Reduction Fishery are subject to the reduction effort. Fishing history, the fishing vessel itself, and other assets associated with the permits are not required to be relinquished as part of this reduction effort. Fees for repayment of the loan will be calculated upon the annual ex-vessel value of all salmon harvested in the Southeast Alaska purse seine fishery and will be collected from those who continue fishing in the Reduction Fishery after implementation of the Program set forth in § 600.1107 of subpart M of part 600 of Title 50 of the Code of Federal Regulations.

On May 23, 2011, NMFS published proposed regulations in the Federal Register (76 FR 29707) to implement the program. This final rule implements the program with changes as described below and will be effective on November 7, 2011.

NMFS received five comments in response to the proposed rule. Three were from individuals, one from the Alaska Commercial Fisheries Entry Commission, and one from the SRA. The three individuals each expressed opposition to the Program for a variety of reasons.

Comment 1: Each of the three individuals expressed concerns that the Program would make it more difficult for new participants to enter the fishery by increasing the cost of permits.

Response: Although permit values have been increasing over the last few years, many factors are influencing the rising prices including higher catch levels of pink salmon and higher salmon prices. If permit holders believe the Program would further exacerbate the permit values, they will have the opportunity to vote against the Program in a referendum.

Comment 2: Two of the individuals expressed concern that the Program will be comprised of inactive fishing permits.

Response: NMFS acknowledges that inactive permits will likely be removed from the fishery. However, the permits could be fished in the future if no action is taken. The permit holders must decide if the cost of removing these latent permits is worth an additional 3% fee on future catch and will make that decision in the referendum.

Comment 3: Two of the individuals expressed concern about inactive permit holders who may hold permits for speculative purposes, dominating the referendum and buying back inactive permits.

Response: NMFS acknowledges that inactive permit holders constitute a significant portion of the fishery. The authorizing legislation requires approval from a majority of permit holders. NMFS believes that limiting the ability of certain permit holders to vote in the referendum could be perceived as arbitrary and is contrary to the statute.

Comment 4: Two commenters requested that the enrollment process be clarified to note that the initial determination that an application conforms to the prescribed requirements is made by an independent accounting firm and not the SRA.

Response: NMFS agrees the enrollment process needs to be clarified to note that the initial determination that an application conforms to the prescribed requirements is made by an independent accounting firm and not the SRA, and has accordingly revised § 600.1107(c)(2)(v)(A).

Comment 5: Two commenters noted an inconsistency in the enrollment process and requested that NMFS allow the SRA a period of 21 days after the bid closing date to consult with CFEC and examine bid results to complete the selection process.

Response: NMFS acknowledges the inconsistency and has changed both § 600.1107(c)(3) and § 600.1107(d)(1) to reflect that the SRA a period of 21 days after the bid closing date to consult with CFEC and examine bid results to complete the selection process.

Comment 6: Two commenters requested that NMFS clarify the bid selection process in the event that two identical bids are received on the same day and suggested that a random method be used such as drawing lots.

Response: NMFS agrees that the language in § 600.1107(d)(3) should be less ambiguous and has revised the language to state that in the event of a tie, the first bid received, if known, shall be selected. If the receipt time cannot be determined, neither bid will be accepted. A permit holder can ensure the receipt time is documented when using a reliable express delivery service. This solution is more equitable than some random method such as drawing lots, which could merely lead to further disputes as to the integrity of that process.

Comment 7: Two commenters stated that the referendum voting process does not provide sufficient time for NMFS to determine the accuracy of eligible voters, issue ballots, and for fishermen to return the ballots. They recommended providing a period of 21 days to conduct the referendum.

Response: NMFS agrees that the voting period should be expanded and has revised § 600.1107(e)(3) to allow a voting period of 21 to 30 days.

Comment 8: Two commenters requested that the list of eligible referendum voters to be published in the Federal Register contain a 7-day period to accept comments from the public.

Response: NMFS agrees that the public needs an opportunity to comment about any discrepancy before the referendum occurs but believes more time is necessary and therefore has revised § 600.1107(e)(3)(i) to allow the public 15 days to comment.

NMFS revises the following sections of the regulations of subpart M to 50 CFR part 600:

(1) Section 600.1107(c)(2)(v)(A). This section is revised to note that the initial determination that an application conforms to the prescribed requirements is made by an independent accounting firm and not the SRA.

(2) Section 600.1107(c)(3). This section is amended to allow the SRA a period of 21 days after the bid closing date to consult with CFEC and examine bid results to complete the selection process.

(3) Section 600.1107(d)(1). This section is also amended to allow the SRA a period of 21 days after the bid closing date to consult with CFEC and examine bid results to complete the selection process.

(4) Section 600.1107(d)(3). This section is revised to state that in the event of a tie, the first bid received, if known, shall be selected. If the receipt time cannot be determined, neither bid will be accepted.

(5) Section 600.1107(e)(3). This section is revised to allow a voting period of not less than 21 days and not more than 30 days.

(6) Section 600.1107(e)(3)(i). This section is revised to provide the public with a 15 day period to accept comments on the list of eligible referendum voters to be published in the Federal Register .

Participants who wish to relinquish their permits are required to complete a Bid, Relinquishment Contract, Conditional Notice and Conditional Relinquishment form. A copy of these documents will be mailed by the SRA to each person who is the holder of record of a valid entry permit issued by CFEC to operate in the Reduction Fishery. A copy of those documents is appended to this final rule.

The Bid identifies the eligible bidder and specifies requirements with which the bidder must comply upon acceptance of bid.

The Relinquishment Contract is the agreement entered into by the bidder and the SRA whereby the bidder agrees to relinquish a permit upon acceptance of the bid and before payment of the bid amount.

The Conditional Notice is the CFEC form restricting renewal and transfer of each permit for which a bid was accepted.

The Conditional Relinquishment is the CFEC form signed by the bidder to voluntarily give up a permit and to agree to abide by the terms in that form upon SRA acceptance of the bid.

To participate in the Capacity Reduction Program, a Permit Holder submits a fully completed and executed Bid, Relinquishment Contract, Conditional Notice, and Conditional Relinquishment. Each application must be submitted to the SRA, c/o Elgee, Rehfeld, Mertz, LLC, Professional Plaza Building B, 9309 Glacier Highway, Suite B-200, Juneau, Alaska 99801. The Bid and other required documents must be received by the SRA no later than the bid closing date identified in the above mentioned mailing to Permit Holders. Once submitted, a bid is irrevocable and cannot be withdrawn or amended. If a Permit Holder holds more than one permit, the Permit Holder must submit a separate Bid for each permit that he/she offers to relinquish.

By submitting a Bid, the Permit Holder warrants and represents that he/she has read and understood the terms of the Bid, Relinquishment Contract, Conditional Notice, and Conditional Relinquishment, and has had the opportunity to seek independent legal counsel regarding such documents and the consequences of submitting the Bid.

By submitting the Bid, the permit holder expressly acknowledges that he/she makes an irrevocable offer to relinquish a permit for a specific price to CFEC, and once having submitted the Bid, the bidder is not entitled to withdraw or in any way amend the Bid. The permit would be relinquished for the price set forth in the Bid contingent on acceptance by the SRA at the closing of the Selection Process. Any attempted withdrawal by a bidder will be invalid, and the Bid will remain a binding, irrevocable offer, unaffected by the attempted withdrawal.

The SRA will begin the Selection Process upon its receipt of the first application and will continue until: (1) The bid closing date specified by SRA; or (2) the ranking of the next lowest bid would cause the total program costs to exceed $23.5 million

During the selection process, the SRA, in consultation with CFEC, will examine each submitted Bid for consistency and the necessary elements, including the validity of the permit and whether any authorized party holds a security interest in the permit. The SRA will notify the Permit Holder if the Bid is non-conforming and, in such cases, the Permit Holder may submit a revised, conforming Bid if within the prescribed period ( i.e., until the bid closing date). A Bid that is submitted by the Permit Holder but is not accepted by the SRA, including a nonconforming bid that is not revised by the bid closing date, will be deemed terminated and both the Permit Holder and the SRA will have no further obligation. The SRA will rank all conforming bids by using a reverse auction in which the SRA ranks the bid with the lowest dollar amount and successively ranks each additional bid with the next lowest dollar amount, until there are no more bids or the ranking of the next lowest bid would cause the total program cost to exceed $23,476,500. In the event of a tie with bids which results in the tied bids exceeding $23,476,500, the SRA will select the tied bid received first. If the receipt time cannot be determined, neither bid will be accepted.

Upon termination of the selection process, the SRA shall determine whether the number of ranked bids it is willing to accept is sufficient to achieve a substantial reduction in harvest capacity and increases economic efficiencies ( i.e., increases harvesting productivity) for those Permit Holders remaining in the fishery. If the SRA makes such a determination and thereafter accepts bids, the SRA will send CFEC the Conditional Notice form restricting renewal and transfer of each permit for which a bid was accepted.

Once the SRA completes the selection process and after the bid closing date, the SRA will sign all accepted Bids and the SRA will notify each Permit Holder, via certified mail, of the effective date of the Bid. While the Bid is an irrevocable offer, it remains subject to the requirement for an industry referendum (VI. below). Bid selection occurs prior to the referendum because the Reduction Plan resulting from the Bid selection process is the course of action upon which the referendum participants are voting.

Within 30 days after the conclusion of the selection process, the SRA will submit the Reduction Plan to NMFS for final approval on behalf of the Secretary of Commerce (Secretary). The aggregate of all Bids, Relinquishment Contracts, Conditional Notices, and Conditional Relinquishments signed by permit holders whose bids are accepted by the SRA will together, with supporting rationale, constitute the Reduction Plan. The supporting rationale must demonstrate that the Reduction Plan would permanently reduce the most harvesting capacity in the Reduction Fishery at the least cost, increase harvesting productivity for post-reduction permit holders participating in the fishery, and improve flexibility in the conservation and management of the fishery. The Reduction Plan will include a listing of accepted bids arranged by bid amount from lowest to highest bid attended by a statement from the SRA that all other bids received, if any, were higher than the largest dollar amount of the last bid accepted.

The primary requirements for the Assistant Administrator of NMFS, on behalf of the Secretary, to approve a Reduction Plan are specified at § 600.1107(e)(2). Among other requirements, the Assistant Administrator of NMFS must find that the Reduction Plan is consistent with the amended Consolidated Appropriations Act of 2005 and the applicable sections of the Magnuson-Stevens Act.

The current Fishing Capacity Reduction Framework regulatory provisions of § 600.1010 stipulate procedural and other requirements for NMFS to conduct referenda on fishing capacity reduction programs, and § 600.1017(a)(1)-(4) stipulate prohibitions related to voting in a referendum. The proposed § 600.1107(e)(3) makes those framework referenda requirements applicable to this Program.

If NMFS approves the Reduction Plan, NMFS will conduct a referendum to determine the industry's willingness to repay a fishing capacity reduction loan for purchase of the permits identified in the Reduction Plan. NMFS will publish a notice in the Federal Register requesting votes by Permit Holders on whether to accept or reject the Reduction Plan for implementation. NMFS will issue ballots to eligible voters, tally votes received, and notify voters on the outcome of the referendum.

A successful referendum by a majority of the Permit Holders in the Reduction Fishery would bind all parties and complete the reduction process. An unsuccessful referendum would void accepted Bids and other supporting documents without further obligation from the SRA or the bidders.

Within 60 days after a successful referendum, CFEC will provide notice to NMFS of the permits retired from the Reduction Fishery. NMFS, after receiving the notice of the retired permits, will then tender the accepted bid amounts to the accepted bidders. If the SRA accepts a total number of bids in an aggregate amount less than $23,476,500, any remaining funds could be available for reduction payments as part of a later, separate Reduction Plan.

The Reduction Loan will be amortized over a forty-year term. The Reduction Loan's original principal amount may not exceed $23,476,500, but may be less if the ultimate reduction cost is less. The final Reduction Loan periodic payment amount will be determined by NMFS analysis of the ability of the post-reduction fishery to service the debt. The Reduction Loan's interest rate will be the U.S. Treasury's cost of borrowing equivalent maturity funds plus two percent. The framework provisions of §§ 600.1012-600.1017 will apply to any reduction loan, fee payment and collection set forth in this rule to the extent they do not conflict with this rule.

Post-reduction Permit Holders operating in the fishery will be obligated to pay a fee for the repayment of the loan in accordance with § 600.1107(f). The fee will be expressed as a percentage of the ex-vessel price of all salmon harvested and landed in the fishery. For example, if the fee is three percent and the ex-vessel value is $0.50, then the fee per pound of salmon will equal $0.015 per pound. The amount of such fee will be calculated by NMFS on an annual basis as the principal and interest payment amount necessary to amortize the loan over a 40-year term. The maximum fee rate is three percent of total ex-vessel production revenues. In the event that payments made under the Reduction Plan at the maximum fee level are insufficient to repay the Reduction Loan within the 40-year term, NMFS will extend the term of the repayment until the Reduction Loan is paid in full.

Fees must be assessed and collected on all salmon harvested in the fishery. Although the fee could be up to three percent of the ex-vessel price of all post-reduction landings, the fee will be less than three percent if NMFS projects that a lesser rate can amortize the Reduction Loan over the 40-year term.

It is possible that the fishery may not open during some years. Consequently, the fishery will not produce fee revenue with which to service the Reduction Loan during these years. However, interest will continue to accrue on the principal balance. When this happens, if the fee is not already at the maximum three percent, NMFS will increase the fee to the maximum three percent in the next season that the fishery is open, apply all subsequent fee revenue first to the payment of accrued interest, and continue the maximum fee rates until the principal and interest payments become current. Once all principal and interest payments are current, NMFS will make annual determinations on adjusting the fee rate.

The dealer who first purchases the salmon landed in the fishery (“fish buyer”) will be responsible for collecting and submitting the repayment fees to NMFS on a monthly basis. Both Alaska Department of Fish and Game daily fish tickets and the State of Alaska's Commercial Operator Annual Report (COAR) produced annually each March following the close of the previous season will be used to monitor fee collection.

The current Fishing Capacity Reduction Framework regulatory provisions of § 600.1013 (Fee payment and collection), § 600.1014 (Fee collection deposits, disbursements, records, and reports), § 600.1015 (Late charges), § 600.1016 (Enforcement), § 600.1017 (Prohibitions and penalties), and § 600.1017(a)(8)-(16) in particular, will apply to any fee collection in this fishery.

The framework rule's provisions at § 600.1014 governs how fish buyers must deposit, and later disburse to NMFS, the fees which they have collected as well as how they must keep records of, and report about, collected fees. Under the framework rule's provisions at § 600.1014, fish buyers must, at the end of each business week, deposit collected fees in federally insured accounts. Fees will be submitted to NMFS monthly and are due no later than fifteen (15) calendar days following the end of each calendar month. Fee collection reports must accompany these disbursements. Fish buyers must maintain specified fee collection records for at least three years and submit to NMFS annual reports of fee collection and disbursement activities by February 1 of each calendar year.

Under § 600.1015, the late charge to fish buyers for fee collection, deposit, and/or disbursement will be one and one-half (1.5) percent per month of the fee due. The full late charge will apply to the fee for each month or portion of a month that the fee remains unpaid.

To provide more accessible services, streamline collections, and save taxpayer dollars, fish buyers may disburse collected fee deposits to NMFS by using a secure Federal system on the Internet known as Pay.gov. Pay.gov enables fish buyers to use their checking accounts to electronically disburse their collected fee deposits to NMFS. Fish buyers who have access to the Internet should consider using this quick and easy collected fee disbursement method. Fish buyers may access Pay.gov at: https://www.pay.gov/paygov/.

Fish buyers who do not have access to the Internet or who simply do not wish to use the Pay.gov electronic system must disburse collected fee deposits to NMFS by sending a check to our lockbox at: NOAA Fisheries Southeast Alaska Salmon Purse Seine Buyback, P.O. Box 979002, St. Louis, MO 63197-9000.

Fish buyers must complete a fee collection report for each disbursement. Fish buyers using Pay.gov will find an electronic fee collection report form to accompany electronic disbursements. Fish buyers who do not use Pay.gov must include a hard copy fee collection report with each of their disbursements and may access the NMFS Web site for a PDF version of the fee collection report at: http://www.nmfs.noaa.gov/mb/financial_services/buyback.htm.

Before the fee's effective date, NMFS will separately mail a copy of the final rule, along with detailed fee payment, collection, deposit, disbursement, recording, and reporting information and guidance, to each fish seller and buyer of whom NMFS has notice. The fact that any fish seller or buyer might not, for whatever reason, receive a copy of the notice or of the information and guidance does not relieve the fish seller or buyer from his/her fee obligations under the applicable regulations.

All parties interested in this action should carefully read the following framework rule sections, whose detailed provisions apply to the fee system for repaying the reduction program's loan:

1. § 600.1012;

2. $ 600.1013;

3. § 600.1014;

4. § 600.1015;

5. § 600.1016; and

6. § 600.1017.

NMFS, in accordance with the framework rule's provisions at § 600.1013(d), establishes the initial fee for the program's reduction fishery as 3 percent of the annual ex-vessel value of all salmon harvested in the fishery.

Please see the framework rule's provisions at § 600.1000 for the definition of “delivery value” and of the other terms relevant to this rule. Each disbursement of the reduction loan's principal amount will begin accruing interest as of the date of each such disbursement. This loan's interest rate is the applicable rate, which the U.S. Treasury determines at the end of the fiscal year, plus two percent.

The proposed regulatory provisions at § 600.1107(g) mirror the Bid's provisions for Specific Performance. Development of a capacity reduction program provides a unique opportunity for permit holders to manage capacity themselves. Failure of an accepted bidder to perform the obligations under the Relinquishment Contract will result in irreparable damage to the SRA and other Permit Holders. Therefore, money damages are inadequate to redress the harm caused to the bidders by a breach of contract. Specific performance is the only adequate remedy.

The provisions and requirements of § 600.1016 and § 600.1017 shall also apply to fish sellers and fish buyers subject to this fishery. Specifically, the final rule amends § 600.1017 by adding language that prohibits buyers from buying fish from reduction fishery participants who do not pay the required landing fee and prohibits reduction fishery participants from selling fish to buyers who do not collect the fees.

Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the provisions of the Magnuson-Stevens Act, and Title II, Section 209 of Public Law 108-447 as amended by Section 121 of Public Law 109-479.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

In compliance with the National Environmental Policy Act, NMFS prepared an environmental assessment (EA) for this rule. The assessment discusses the impact of this final rule on the natural and human environment and integrates a Regulatory Impact Review (RIR) and a Final Regulatory Flexibility Analysis (FRFA). NMFS will send the assessment, the review and analysis to anyone who requests a copy (see ADDRESSES ).

NMFS prepared a FRFA, as required by section 603 of the Regulatory Flexibility Act (RFA), to describe the economic impacts this rule would have on small entities. NMFS intends the analysis to aid the agency in considering regulatory alternatives that could minimize the economic impact on affected small entities. The rule does not duplicate or conflict with other Federal regulations.

The Small Business Administration (SBA) has defined small entities as all fish harvesting businesses that are independently owned and operated, not dominant in its field of operation, and with annual receipts of $4 million or less. In addition, processors with 500 or fewer employees for related industries involved in canned or cured fish and seafood, or preparing fresh fish and seafood, are also considered small entities. Small entities within the scope of this rule include individual U.S. vessels, Permit Holders, and dealers. There are no disproportionate impacts between large and small entities.

Most firms operating in the Reduction Fishery have annual gross revenues of less than $4 million. The FRFA analysis estimates that most of the 212 active vessels that participated in 2008 are considered small entities. The ownership characteristics of vessels operating in the Reduction Fishery are not available and, therefore, it is not possible to determine with certainty if they are independently owned and operated or affiliated in one way or another with a larger parent company. However, because the action would not result in changes to allocation percentages and participation is voluntary, net effects would be expected to be minimal relative to the status quo.

The final rule's impact would be positive for both those whose bids NMFS accepts and for post-reduction harvesters whose landing fees repay the reduction loan because the Bidders and harvesters would have voluntarily assumed the impact:

1. Bidders would have volunteered to make bids at dollar amounts of their own choice. Presumably, no Bidder would volunteer to make a bid with an amount that is inconsistent with the Bidder's interest; and

2. Reduction loan repayment landing fees would be authorized, and NMFS could complete the Reduction Program, only if a majority of Permit Holders voted in favor of the Reduction Plan. Presumably, harvesters who are not selected would not vote in favor of the Reduction Plan unless they concluded that the Reduction Program's prospective capacity reduction was sufficient to enable them to increase their post-reduction revenues enough to justify the fee.

3. Those participants remaining in the fishery after the buyback will incur additional fees of up to 3 percent of the ex vessel production value of post reduction landings. However, the additional costs should be mitigated by reducing the possibility that latent permits will be activated thus reducing harvest levels and stabilizing year-to-year price fluctuations. NMFS believes that this final rule would affect neither authorized harvest levels nor harvesting practices.

Other than the preferred alternative, which is being implemented in this rule, NMFS considered the no action alternative in developing this action. NMFS rejected the no action alternative considered in the EA because if it failed to act, NMFS would not be in compliance with the mandate of Section 209 of the authorizing legislation to establish a buyback program. In addition, the Southeast Alaska purse seine salmon fishery would remain overcapitalized. Overcapitalization reduces the potential net value that could be derived from the salmon resource by dissipating rents, driving variable operating costs up, and imposing economic externalities on the fishermen. Overcapitalization has diminished the economic viability of members of the fleet and increased the economic and social burden on fishery dependent communities.

This final rule contains information collection requirements subject to the Paperwork Reduction Act (PRA). The Office of Management and Budget (OMB) previously approved this information collection under OMB Control Number 0648-0376.

NMFS amends the existing OMB control number as a result of the implementation of this capacity reduction program. The revision has been submitted to OMB for approval. NMFS estimates that the public reporting burden for this information collection totals 878 respondents with a total response time of 38,653 hours. NMFS estimates that each respondent will take an average of 4 hours for submitting a Bid (which includes executing the Bid Agreement and the Reduction Contract) and 4 hours for voting in a referendum. Persons affected by this rule would also be subject to other collection-of-information requirements referred to in the proposed rule and also approved under OMB Control Number 0648-0376. These requirements and their associated response times are: Completing and filing a fish ticket (10 minutes), submitting monthly fish buyer reports (2 hours), submitting annual fish buyer reports (4 hours), and fish buyer/fish seller reports when a person fails either to pay or to collect the loan repayment fee (2 hours).

These response estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection. Public comment is sought regarding: Whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Interested persons may send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to both NMFS and OMB (see ADDRESSES ).

Notwithstanding any other provision of law, no person is required to respond to, and no person is subject to a penalty for failure to comply with, an information collection subject to the PRA requirements unless that information collection displays a currently valid OMB control number.

This action would not result in any adverse effects on endangered species or marine mammals.

For the reasons set out in the preamble, 50 CFR part 600, subpart M, is amended as follows:

This temporary final rule extends the revised GB yellowtail flounder catch limits implemented through emergency authority as published in the FW 45 final rule on April 25, 2011 (76 FR 23042) in order to maintain those measures through the end of FY 2010 (April 30, 2012). The April 25, 2011 final rule included detailed information on the background and reasons for the need to revise the GB yellowtail flounder catch limits from those originally proposed in the FW 45 proposed rule (76 FR 11858; March 3, 2011). The public had an opportunity to comment on the April 25, 2011 emergency measures, but no comments were submitted. We will again accept public comment on both the appropriateness of the emergency action to date, and its extension.

The emergency specifications extended through this final rule are the revised GB yellowtail flounder catch limits for FY 2011, as follows: A U.S. ABC of 1,458 mt; a total ACL of 1,416 mt; a groundfish sub-ACL of 1,142 mt; a scallop fishery sub-ACL of 200.8 mt; and an Other ACL sub-component of 73 mt. The initial emergency action modified GB yellowtail flounder catch limits from those originally proposed as a result of the passage of new legislation (International Fisheries Agreement Clarification Act).

Although the FW 45 final rule contained preliminary information regarding the more specific components of the groundfish sub-ACL (the division of the groundfish sub-ACL between sectors and the common pool and the Incidental Catch Total Allowable Catches for common pool vessels), it did not implement the final specification of these components (and this rule does not need to address those aspects of the FMP). The components of the GB yellowtail flounder groundfish sub-ACL are specified in the final rule that adjusted the FY 2011 groundfish sub-ACL components for all stocks (76 FR 34903; June 15, 2011).

No comments were received on the initial emergency rule.

We have determined that the emergency specifications extended by this temporary final rule are necessary and are consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable law.

The interim rule that this rule extends was determined to be not significant for purposes of E.O. 12866.

This rule is exempt from the procedures of the Regulatory Flexibility Act to prepare a regulatory flexibility analysis because the rule is issued without opportunity for prior public comment.

The supplemental Environmental Assessment (EA) prepared for the initial emergency action analyzed the impacts of the emergency specifications for the duration of a year (Supplemental EA, Revised Georges Bank Yellowtail Flounder Catch Limits for Fishing Year 2011; April 13, 2011). Therefore, the impacts of this emergency action extension have been analyzed, and are within the scope of the Finding of No Significant Impact.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan or fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment.

NMFS published the notice of availability for Amendment 13 to the FMP on July 11, 2011 (76 FR 40674), with a comment period that ended on September 9, 2011. NMFS received no comments on Amendment 13.

NMFS determined that Amendment 13 to the FMP is consistent with the Magnuson-Stevens Act and other applicable laws and approved Amendment 13 on September 30, 2011. The July 11, 2011, notice of availability (76 FR 40674) contains additional information on this action. No changes to Federal regulations are necessary to implement this FMP amendment.

The Council developed the FMP under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq. ), and it was approved by the Secretary on July 26, 1995. The scallop fisheries in the U.S. exclusive economic zone off Alaska are jointly managed according to the FMP and implementing regulations issued by NMFS or the State of Alaska (State). The FMP delegates many management measures for the scallop fisheries to the State with Federal oversight. Under the FMP, the State sets a guideline harvest level (GHL) for each scallop registration area and manages each fishery inseason to the corresponding GHL. The GHL is an amount of harvest the managers determine acceptable for the upcoming fishing year. The GHL for each scallop fishery is set within the applicable guideline harvest range, which the State has established in regulations.

The FMP covers all scallop stocks off Alaska. Weathervane scallops are currently the only scallop species targeted in commercial fisheries. All other scallop species, including pink, spiny, and rock scallops, are not targeted but occasionally occur as bycatch in the weathervane scallop fisheries.

Amendment 13 was unanimously adopted by the Council in October 2010. Amendment 13 (1) Revises the MSY and OY to include all fishing mortality; (2) specifies that the OFL equals the MSY in the absence of a statewide estimate of spawning biomass for weathervane scallops; (3) specifies an acceptable biological catch (ABC) control rule to account for uncertainty in the OFL; (4) sets the ACL equal to the ABC; (5) specifies accountability measures to prevent catch from exceeding the ACL and to correct for an overage if the ACL is exceeded; and (6) creates an EC category for non-target scallop species. With adoption of Amendment 13, NMFS determines that the FMP complies with the new requirements of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2007.

The Magnuson-Stevens Act establishes, either expressly or by logical extension, four basic requirements that prompted the Council's recommendation to amend the FMP. The Guidelines for National Standard 1 of the Magnuson-Stevens Act (50 CFR 600.310; NS 1 Guidelines) provide guidance to regional fishery management councils about how to satisfy the obligations of the Magnuson-Stevens Act relative to preventing overfishing and establishing an ABC and ACL. The following is a summary of these four requirements.

1. For stocks in the fishery, the FMP must establish a mechanism for specifying an ACL that will prevent overfishing;

2. For each stock or stock complex in the fishery, the FMP must establish an ABC control rule that accounts for relevant sources of scientific uncertainty;

3. The Council's Scientific and Statistical Committee (SSC) must provide the Council with scientific advice on the ABC control rule and periodic recommendations for specifying the ABC for each stock or stock complex in the fishery; and

4. The FMP must establish accountability measures that prevent exceeding the ACL and correct overages of the ACL if they do occur.

The Council designed Amendment 13 to address these requirements while maintaining the FMP's cooperative State and Federal management structure, to the extent possible. Maximum Sustainable Yield, Optimum Yield, and Overfishing Level.

Previously, the FMP specified an MSY and OY range that reflect only the retained catch in the weathervane scallop fishery. Amendment 13 revises the retained catch MSY and OY range to reflect total catch by encompassing all sources of scallop fishing mortality, including discards in the directed scallop fishery, bycatch in the groundfish fisheries, and mortality associated with research surveys. The statewide weathervane scallop MSY is revised from 1.24 million pounds (562 metric tons) to 1.284 million pounds (582 metric tons) of shucked meats. The OY is estimated statewide with an upper bound of the MSY. Amendment 13 revises the weathervane scallop OY range to be 0 to 1.284 million pounds (582 metric tons) of shucked meats.

Previously, the FMP specified an overfishing control rule for weathervane scallops stocks as a fishing rate in excess of the natural mortality rate. If an estimate of the statewide weathervane scallop spawning biomass becomes available, the overfishing control rule would be applied to that estimate to determine the OFL. An estimate of the statewide weathervane scallop spawning biomass is not currently available, however, which prevents application of the overfishing control rule to annually determine the OFL. Therefore, until such an estimate of spawning biomass is available, Amendment 13 specifies a default OFL equal to the MSY of 1.284 million pounds. The OFL will be set statewide because the best available information indicates that there is one statewide stock of weathervane scallops and the information necessary to set regional OFLs is not available. In practice, the statewide MSY has functioned as the OFL since 1996. The average annual weathervane scallop catch since 1996 has been less than half of the MSY.

Amendment 13 establishes an ABC control rule and sets the ACL equal to the ABC. Annually, the ABC control rule will be used to set the maximum ABC for the statewide weathervane scallop stock at 90 percent of the OFL. This 10-percent buffer reduces the risk of overfishing occurring in the weathervane scallop fishery.

The ABC is set to account for the scientific uncertainty in the estimate of the OFL. Lacking a stock assessment model, the sources of scientific uncertainty in the scallop OFL estimate are not directly quantifiable at this time. Therefore, under Amendment 13, scientific uncertainty in the OFL estimate is incorporated in the size of the buffer between the OFL and the ABC.

The Council's SSC annually establishes the ABC for weathervane scallops through the following process. The Scallop Plan Team meets shortly after the scallop fishing season concludes to compile the Stock Assessment and Fishery Evaluation (SAFE) report. The SAFE includes stock assessments, fishery information, and reference points. The Scallop Plan Team will evaluate whether the total catch exceeded the ACL in the previous fishing season. The Scallop Plan Team will then calculate the maximum ABC using the ABC control rule for the upcoming fishing season. The Scallop Plan Team may recommend that the SSC set an ABC lower than the maximum ABC, but it should provide an explanation for such a recommendation.

The SSC will then review the SAFE and recommendations from the Scallop Plan Team. The SSC will set a statewide ABC for the directed weathervane scallop fishery prior to the beginning of the fishing season. The SSC may set an ABC lower than the maximum ABC calculated using the ABC control rule, but it must provide an explanation for why a lower ABC was set.

Amendment 13 establishes AMs to prevent ACLs from being exceeded and to correct overages of the ACL if they do occur. First, under Amendment 13, the State establishes the annual GHL for each scallop management area at a level sufficiently below the ACL so that the sum of the directed scallop fishery removals and estimated discard mortality in directed scallop and groundfish fisheries does not exceed the ACL.

Second, NMFS expects that the inseason management measures that prevent catch from exceeding the GHL, and have been a part of management of the weathervane scallop fishery since the inception of this FMP, will also prevent catch from exceeding the ACL. State management requires 100-percent observer coverage of all vessels in the weathervane scallop fishery. Fishery observers provide inseason data on catch and bycatch. Managers monitor inseason fisheries landings and observer data, and have the authority to close a fishery inseason to prevent catch from exceeding the GHL.

Third, if total catch does exceed the ACL, State managers will account for the overage through a downward adjustment to the GHL in the following season by an amount sufficient to remedy the biological consequences of the overage.

Under the NS 1 Guidelines, all stocks in an FMP are considered to be “in the fishery,” unless they are identified as EC species through an FMP amendment process. Council review of the FMP determined that weathervane scallops are “in the fishery” as they are targeted and retained for sale. Amendment 13 establishes an EC category in the FMP that contains all non-targeted scallop species, including pink or reddish scallops, spiny scallops, and rock scallops.

Non-targeted scallops have been managed under the scallop FMP but are not generally retained in commercial scallop fisheries off Alaska. These non-target scallop species occupy habitats at different depths than the targeted weathervane scallops; therefore, NMFS does not anticipate that incidental catch in the weathervane scallop fishery would pose a serious risk to these stocks. The best available scientific information does not indicate that any of the non-target scallop species are overfished, subject to overfishing or approaching an overfished condition, or likely to become overfished if placed in the EC category.

According to the NS 1 Guidelines, no reference points are required for EC species; however, under Amendment 13, these species will be monitored to ensure they are not targeted and that incidental catch does not reach a point where there are concerns for the sustainability of these stocks. Harvest limits and related management measures would be developed and implemented prior to developing a fishery for any of these species.

An Environmental Assessment was prepared for Amendment 13 that provides detailed descriptions of the scallop fishery management background, the purpose and need for action, the management alternatives evaluated to address this action, and the environmental, social, and economic impacts of the alternatives (see ADDRESSES ).

NMFS did not receive any comments on Amendment 13.