[Federal Register Volume 76, Number 194 (Thursday, October 6, 2011)]
[Rules and Regulations]
[Pages 61978-61985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25689]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 23

[Docket No. FWS-R9-IA-2009-0033; 96300-1671-0000-R4]
RIN 1018-AW93


Inclusion of the Hellbender, Including the Eastern Hellbender and 
the Ozark Hellbender, in Appendix III of the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are listing 
the hellbender (Cryptobranchus alleganiensis), a large aquatic 
salamander, including its two subspecies, the eastern hellbender 
(Cryptobranchus alleganiensis alleganiensis) and the Ozark hellbender 
(Cryptobranchus alleganiensis bishopi), in Appendix III of the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES or Convention). This listing includes live and dead 
whole specimens, and all readily recognizable parts, products, and 
derivatives of this species and its subspecies. Listing hellbenders in 
Appendix III of CITES is necessary to allow us to adequately monitor 
international trade in the taxon; to determine whether exports are 
occurring legally, with respect to State law; and to determine whether 
further measures under CITES or other laws are required to conserve 
this species and its subspecies.

DATES: This listing will become effective April 3, 2012.

ADDRESSES: 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: [email protected]; Web site: http://www.fws.gov/international/index.html.

FOR FURTHER INFORMATION CONTACT: Robert R. Gabel, Chief, Division of 
Management Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax 
Drive, Room 212, Arlington, VA 22203; telephone 703-358-2104; facsimile 
703-358-2280. If you use a telecommunications device for the deaf 
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION: 

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

[[Page 61979]]

rule (see the Summary of Comments and Our Responses section below). Our 
final decision reflects consideration of the information and opinions 
we have received.

Species Information

    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 [deg]Fahrenheit (20 
[deg]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

    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.

CITES Appendices

    Species covered by the Convention are listed in one of three 
Appendices. Appendix I includes species threatened with extinction that 
are or may be affected by international trade, and are generally 
prohibited from commercial trade. Appendix II includes species that, 
although not necessarily threatened with extinction now, may become so 
unless the trade is strictly controlled. It also lists species that 
CITES must regulate so that trade in other listed species may be 
brought under effective control (e.g., because of similarity of 
appearance between listed species and other species). Appendix III 
includes native species, identified by any Party, that are regulated to 
prevent or restrict exploitation, where the Party requests the help of 
other Parties to monitor and control the trade of the species.
    To include a species in or remove a species from Appendices I or 
II, 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.

Listing a Native U.S. Species in Appendix III

    Article II, paragraph 3, of CITES states that ``Appendix III shall 
include all species which any Party identifies as being subject to 
regulation within its jurisdiction for the purpose of

[[Page 61980]]

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).

Permits and Other Requirements

    The export of an Appendix-III species listed by the United States 
requires an export permit issued by the Service's Division of 
Management Authority (DMA). DMA will issue a permit only if the 
applicant obtained the specimen legally, without violating any 
applicable U.S. laws, including relevant State wildlife laws and 
regulations, and the live specimen is packed and shipped according to 
the IATA Live Animals Regulations to reduce the risk of injury and 
cruel treatment. DMA, in determining if the applicant legally obtained 
the specimen, is required to consult relevant State and Federal 
agencies. Since the conservation and management of these species is 
primarily under the jurisdiction of State agencies, we will consult 
those agencies to ensure that specimens destined for export were 
obtained in compliance with State laws and regulations. Unlike species 
listed in Appendices I and II, 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.

Process, Findings, and Fees

    To apply for a CITES permit, an applicant is required to furnish to 
DMA a completed CITES export permit application (with 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: [email protected]; 
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: [email protected]; 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.

Lacey Act

    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

[[Page 61981]]

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.

Previous Federal Actions

    In a series of five notices published in the Federal Register 
between 1982 and 1994 (47 FR 58454, 50 FR 37958, 54 FR 554, 56 FR 
58804, and 59 FR 58982), we identified the hellbender (Cryptobranchus 
alleganiensis) as a taxon native to the United States with a listing 
candidate status under the Endangered Species Act of category 2. At 
that time, taxa included in category 2 were those taxa for which we had 
information indicating that it was possibly appropriate to list such 
taxa as 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.

Summary of Comments and Our Responses

    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

[[Page 61982]]

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

[[Page 61983]]

to propose the species for inclusion in Appendix I or II.

Decision To List All Hellbenders in CITES Appendix III

    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.

Required Determinations

Regulatory Planning and Review (Executive Order 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under Executive Order 12866 (E.O. 12866). OMB 
bases its determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 802(2)), whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The Department of the 
Interior certifies that this action 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.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    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

[[Page 61984]]

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.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    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.

National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)

    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.

Takings (Executive Order 12630)

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

Federalism (Executive Order 13132)

    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.

Civil Justice Reform (Executive Order 12988)

    The Department, in promulgating this rule, has determined that it 
will not unduly burden the judicial system and that it meets the 
requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we have a responsibility to communicate 
meaningfully with recognized Federal Tribes on a government-to-
government basis. In accordance with Secretarial Order 3206 of June 5, 
1997 (American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes. We determined that this final rule will have no effect on 
Tribes or tribal lands.

Energy Supply, Distribution, or Use (Executive Order 13211)

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Significantly Affect Energy Supply, Distribution, or 
Use) on regulations that significantly affect energy supply, 
distribution, and use. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. This 
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.

References Cited

    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).

Author

    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.

Amendment to CITES Appendix III

    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

[[Page 61985]]

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.

    Dated: September 26, 2011.
Rowan W. Gould,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-25689 Filed 10-5-11; 8:45 am]
BILLING CODE 4310-55-P