Background:USCIS collects personally identifiable information (PII) directly from and about immigrants and nonimmigrants through applications and petitions for the purposes of adjudicating and bestowing immigration benefits. USCIS maintains a number of systems to facilitate these purposes including: the Computer Linked Application Information Management System (CLAIMS 3), CLAIMS 4, the Refugees, Asylum, and Parole System (RAPS), Asylum Pre-screen System (APSS), Re-engineered Naturalization Application Casework System (RNACS), Central Index System (CIS) and the Fraud Detection and National Security Data System (FDNS-DS). As part of the adjudication process, USCIS personnel engage in a number of steps to ensure that an individual is eligible for a requested benefit. One of these steps is the performance of background checks to make certain that an individual is not attempting to obtain the requested benefit by fraudulent means, has not committed a Crime Involving Moral Turpitude and/or does not pose a public safety threat or a threat to national security.

USCIS developed CIDR, hosted on DHS classified networks, in order to make information from these USCIS systems available to authorized USCIS personnel for the purposes of: (1) Vetting USCIS application information for indications of possible immigration fraud and national security concerns; (2) detecting possible fraud and misuse of immigration information or position by USCIS employees, for personal gain or by coercion; and (3) responding to requests for information (RFI) from the DHS Office of Intelligence and Analysis (I&A) and/or federal intelligence and law enforcement community members that are based on classified criteria. CIDR enables authorized USCIS users to more efficiently search multiple USCIS systems from a single entry point, the results of which will be retained in CIDR. CIDR's position on DHS classified networks allows USCIS to securely conduct searches based on classified parameters and searches based on possible fraud and national security concerns.

There are occasions when USICS receives RFIs from members of the Intelligence Community (IC) and Law Enforcement (LE) that are classified. In order to assist with classified investigatory leads and respond to I&A requests, USCIS must conduct searches whose parameters are classified on unclassified data sets. To facilitate a more efficient and secure environment in which to conduct these queries and to store the results, DHS determined that creating mirror copies of its unclassified data sets on the classified side would be the most appropriate solution. CIDR provides the capability to properly conduct and protect classified searches and maintain detailed audit trails of search activities and results. Copying unclassified data from the unclassified systems to a classified site does not render this information classified, only the search parameters and results. CIDR will enable USCIS personnel to perform searches of its non classified data sets in a classified environment, ensuring that the integrity of the classified RFI process is maintained. Based on the results of the searches performed in CIDR, USCIS will produce a response to the RFI, which will include the content of the RFI, information from CIDR that is responsive to the RFI, and any necessary explanations to provide proper context and interpretations of the information provided. These responses will contain PII when de-identified or statistical data cannot satisfy the RFI. These responses will be produced by USCIS personnel as separate electronic documents and sent to I&A in the same manner that the RFI was received; usually via e-mail over the classified e-mail network.

USCIS is proposing to exempt classified information in CIDR from disclosure to a requestor to preserve theintegrity of ongoing counterterrorism, intelligence, or other homeland security activities, pursuant to the Privacy Act. 5 U.S.C. 552a(k)(1) and (2).

Consistent with DHS's information sharing mission, information stored in CIDR may be shared with other DHS components, as well as appropriate Federal, State, local, tribal, foreign, or international governmental agencies. This sharing will only take place after DHS determines that the receiving component or agency has a need to know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the routine uses set forth in this system of records notice.

In accordance with the Privacy Act of 1974 the Department of Homeland Security proposes to establish a new Department of Homeland Security (DHS) system of records notice titled DHS U.S. Citizenship and Immigration Services—012 Citizenship and Immigration Data Repository (CIDR).

The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. Individuals may request their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR part 5.

The Privacy Act requires each agency to publish in theFederal Registera description of the type and character of each system of records that the agency maintains, and the routine uses that are contained in each system in order to make agency recordkeeping practices transparent, to notify individuals regarding the uses to which personally identifiable information is put, and to assist individuals in finding such files within the agency.

The Privacy Act allows Government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.

DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/USCIS—012 CIDR. Some information in DHS/USCIS—012 CIDR relates to official DHS national security, law enforcement, immigration, and intelligence activities. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating law enforcement, immigration, and intelligence processes; to avoid disclosure of means and methods; to protect the identities and physical safety of confidential informants and law enforcement personnel; to ensure DHS' ability to obtain information from third parties and other sources; to protect the privacy of third parties; and to safeguard classified information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.

The exemptions proposed here are standard law enforcement and national security exemptions exercised by a large number of Federal law enforcement and intelligence agencies. In appropriate circumstances, where compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived on a case by case basis.

A notice of system of records for DHS/USCIS—012 CIDR is also published in this issue of theFederal Register.

For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows:

Your written comments on this proposed rule should be specific, should be confined to issues pertinent to the proposed rule, and should explain your reason(s) for any change you recommend or proposal(s) you oppose. Where possible, you should reference the specific section or paragraph of the proposal you are addressing. Comments received after the close of the comment period (see DATES) will not be considered or included in the Administrative Record for the final rule.

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these regulations easier to understand, including answers to questions such as the following:

(1) Are the requirements in the rule clearly stated?

(2) Does the rule contain technical language or jargon that interferes with its clarity?

(3) Does the format of the rule (e.g.,grouping and order of sections, use of headings, and paragraphs) make it clearer or less clear?

(4) Would the rule be easier to understand if it were divided into more (but shorter) sections?

(5) Is the description of the rule in the preamble section entitled “Background and Discussion of the Proposed Rule” helpful in understanding the rule? How could this description be more helpful in making the rule easier to understand?

In the following discussion and regulatory text, the term “State agency,” as defined at 7 CFR 253.2, is used to include ITOs authorized to operate FDPIR in accordance with 7 CFR parts 253 and 254.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866. Therefore it was not reviewed by the Office of Management and Budget (OMB).

This proposed rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). It has been certified that this action will not have a significant impact on a substantial number of small entities. While State agencies that administer FDPIR will be affected by this rulemaking, the economic effect will not be significant.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under Section 202 of the UMRA, FNS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures to State, local, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and Tribal governments or the private sector of $100 million or more in any one year. This rule is, therefore, not subject to the requirements of Sections 202 and 205 of the UMRA.

The program addressed in this action is listed in the Catalog of Federal Domestic Assistance under No. 10.567. For the reasons set forth in the final rule in 7 CFR part 3015, subpart V and related Notice published at 48 FR 29115 on June 24, 1983, the donation of foods in such programs is included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13132.

The programs that receive FDPIR administrative funding from FNS' Regional Offices are all Tribal or State-administered, federally-funded programs. On an ongoing basis, the FNS National and Regional Offices have formal and informal discussions related to FDPIR with Tribal and State officials. FNS meets regularly with the Board and the membership of the National Association of Food Distribution Programs on Indian Reservations (NAFDPIR), an association of Tribal and State-appointed FDPIR Program Directors, to discuss issues relating to the program.

This rulemaking proposes regulatory changes regarding the distribution of FDPIR administrative funds to the FNS Regional Offices for allocation to the ITOs and State agencies that administer FDPIR. Section F,Tribal Consultation,below, provides additional information on FNS' efforts to work directly with the ITOs and State agencies in the development of the funding methodology proposed in this rule.

Current regulations at 7 CFR part 253 do not specify how FDPIR administrative funds must be distributed. For many years, the National Office of the FNS used fixed percentages to allocate FDPIR administrative funds to each of the FNS Regional Offices, which in turn distributed the available funding to FDPIR State agencies. As noted previously, FDPIR State agencies include both ITOs and agencies of state government. The funding methodology did not account for any administrative cost drivers, such as the number of ITOs and State agencies within each Region or the number of individuals served by each ITO/State agency. Therefore, it did not provide a rational basis for allocating funds to the Regional Offices. FDPIR State agencies expressed concern that the methodology did not allocate funds equitably to the FNS Regional Offices, and in turn negatively impacted certain State agencies' ability to adequately administer the program.

FNS has considered the impact of the proposed rule on FDPIR State agencies. FNS does not expect the provisions of this rule to conflict with any State or local laws, regulations, or policies. The intent of this rule is to respond to the concerns of the State agencies by ensuring that funds are allocated to the FNS Regional Offices as fairly as possible; and to ensure that related program requirements with regard to the allocation of administrative funds to State agencies, as well as State agency matching requirements, are clear and easy to understand.

This rulemaking proposes regulatory changes regarding the distribution of FDPIR administrative funds to the FNS Regional Offices, which further allocate the funds to the ITOs and State agencies that administer FDPIR. These amendments are intended to ensure that FDPIR administrative funding is distributed to the FNS Regional Offices in a fair and equitable manner. The proposed rule would also revise FDPIR regulations to clarify current program requirements relative to the allocation of administrative funds to ITOs and State agencies. During the course of developing this rule, FNS has taken a number of actions to ensure meaningful and timely input by elected tribal leaders. In 2005 FNS convened a work group comprised of FNS staff and Tribal and State-appointed FDPIR Program Directors representing NAFDPIR and its membership. The work group was asked to develop a proposal(s) for a new funding methodology for the allocation of FDPIR federal administrative funds. The work group conducted its deliberations via 33 conference calls and six face-to-face meetings from May 2005 through October 2007. Discussions were also held at the annual meetings of the membership of NAFDPIR, in which some elected Tribal leaders took part. The work group and FNS solicited written comments from elected Tribal leaders and State officials at various stages of the development of the funding methodology proposed in this rule. In addition to the requests for written comments, FNS hosted public meetings that were held in January 2007 at four locations throughout the country. Elected Tribal leaders and State officials were invited to discuss the proposal to develop a funding methodology at those public meetings. Discussion from the public meetings and written comments submitted to the work group were considered by the work group in the development of its recommendations to FNS' Administrator. On October 19, 2007, the work group presented recommendations for a funding methodology. These recommendations were used to develop the funding methodology proposed in this rule.

In fiscal year 2008, FNS implemented the funding methodology proposed in this rulemaking on a trial basis. FNS solicited comments from elected Tribal leaders and State officials on the impact of the funding methodology in fiscal year 2008 for consideration in determining the funding methodology to be used in fiscal year 2009, pending the development of this proposed rulemaking.

A regulatory work plan was developed in fiscal year 2008 for the development of this proposed rulemaking with the intent of soliciting comments from elected Tribal leaders, State officials, and other interested members of the public in response to the funding methodology implemented in fiscal year 2008 and proposed in this rule.

A summary of concerns raised by tribal officials, the agency's need to issue this regulation, and an explanation of how these concerns have been addressed is thoroughly discussed in section III of the preamble.

This proposed rule has been reviewed under Executive Order 12988, CivilJustice Reform. Although the provisions of this rule are not expected to conflict with any State or local laws, regulations, or policies, the rule is intended to have preemptive effect with respect to any State or local laws, regulations, or policies that conflict with its provisions or that would otherwise impede its full implementation. This proposed rule is not intended to have retroactive effect. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted.

FNS has reviewed this rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. After a careful review of the rule's intent and provisions, FNS has determined that this rule will not in any way limit or reduce the ability of participants to receive the benefits of donated foods on the basis of an individual's or group's race, color, national origin, sex, age, political beliefs, religious creed, or disability. FNS found no factors that would negatively and disproportionately affect any group of individuals.

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35;see5 CFR part 1320) requires that OMB approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This proposed rule does not contain any new information collection requirements subject to review and approval by OMB under the Paperwork Reduction Act of 1995. However, previous burdens for 7 CFR part 253 information collections associated with this rule have been approved under OMB control number 0584-0293.

FNS is committed to complying with the E-Government Act of 2002 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.

The proposed rule would amend the regulations for FDPIR at 7 CFR 253.11 and impact 7 CFR part 254, which cross-references 7 CFR part 253.

Currently, FDPIR regulations at 7 CFR 253.11 do not specify a methodology for the allocation of administrative funds. Under the traditional practice, the FNS National Office allocated funds to the FNS Regional Offices using fixed percentages. These funding percentages varied from one Region to the next, did not change for many years prior to fiscal year 2008, and did not reflect cost drivers such as each Region's share of national program participation and current number of ITOs and State agencies. Regional Offices then allocated each State agency its share of administrative funds based on negotiations between the two entities. Because FNS Regional Offices received funding without regard to the effect of cost drivers, similar State agencies in different Regions could have received significantly different funding levels. This in turn could have impacted program operations and potentially resulted in inconsistent or uneven service to participants.

To address concerns raised by FDPIR State agencies over potential FDPIR administrative funding inequities, a funding methodology work group was convened by FNS in 2005. The work group, which was comprised of FDPIR program representatives, including NAFDPIR officers, and FNS staff, was charged with developing a new methodology for the distribution of FDPIR administrative funds that would be fair, objective, and easy to understand.

After conducting data collection and analysis for several months, the work group completed a preliminary proposal in November 2006 and submitted it to elected Tribal leaders and State officials for written comment. Elected Tribal leaders and State officials were also invited to attend public meetings held in January 2007 at four locations across the country in order to discuss the work group's preliminary proposal—Green Bay, Wisconsin, Oklahoma City, Oklahoma, Rapid City, South Dakota, and San Francisco, California. Over 100 elected Tribal leaders, State officials, and FDPIR program officials attended the public meetings and/or submitted written comments on the preliminary proposals.

The work group met in April 2007 to review the written comments and transcripts of the four public meetings. The comments reflected a diversity of opinion among elected Tribal leaders and State officials. From April through October 2007, the work group diligently attempted to address the issues and concerns presented in the comments, and resolve any differences of opinion within the work group as well. The work group submitted its final recommendations to former FNS Administrator in a letter dated October 19, 2007. The work group was unable to reach consensus on a single approach, thus it provided three funding allocation methodology proposals. All of the work group members supported at least one of the proposals.

Under the work group's first proposal, individual State agencies would have submitted annual budgets to their respective FNS Regional Offices that reflected their individual program needs. If the total amount requested by all State agencies combined exceeded the amount of the available funding in any fiscal year, the FNS National Office would have reduced each Region's total request by an equal percentage.

Under the work group's second proposal, the FNS National Office would have allocated funds to the Regional Offices based on three weighted factors: Each Region's share of the national participation level averaged over the most recent three-year period; the current number of programs in each Region; and the current number of programs in each Region with tailgate operations, home delivery, and/or multiple warehouses or other issuance methods. As a background, tailgate operations are mobile distribution systems where food packages are delivered to a site or sites nearer to clients' residences rather than being distributed solely out of a central location. Under the work group's second proposal, the FNS Regional Offices would have negotiated budgets with their State agencies within the amount of funds made available.

Under the work group's third proposal, the FNS National Office would have employed a formula to determine a basic grant amount that each State agency would receive. Each State agency would have had the opportunity to negotiate with their FNS Regional Office for supplemental funds to meet their individual needs. Under this proposal, 85 percent of the available funding each year would have been allocated to the State agencies in the form of a basic grant. The basic grantwould have been determined by two factors: A fixed base amount that would be adjusted annually by an inflation factor; and an amount based on each State agency's share of the national participation level averaged over the most recent three-year period. The FNS National Office would have allocated the remaining 15 percent of available funding to the FNS Regional Offices based on each Region's share of the national participation level averaged over the most recent three-year period. That funding would have been used by the FNS Regional Offices to supplement the basic grants to the State agencies based on individual negotiations.

In response to the work group's proposals, FNS developed an administrative funding allocation methodology that was based in large part on the work group's second proposal, to be piloted in fiscal year 2008. The methodology, which has been used in FDPIR since fiscal year 2008, allocates funding to the extent practicable to the Regional Offices based on two weighted components: Each Region's share of the total number of participants nationally, and each Region's share of the total current number of State agencies administering the program nationally. Proportionally more weight is given to the first element, program participation, which FNS believes to be a major cost driver in the administration of FDPIR. Sixty-five percent of all administrative funds available nationally are allocated to FNS Regional Offices in proportion to their share of the number of participants nationally, averaged over the three previous fiscal years. In order to recognize the fixed costs common to programs of all participation levels, the remaining 35 percent of all administrative funds available nationally are allocated to each FNS Regional Office in proportion to its share of the total current number of State agencies administering the program nationally.

By selecting these two factors, FNS intended to design a funding methodology that would provide each FNS Regional Office with the funding to support the operational costs of all of its programs, particularly those impacted by the number of participants served by each State agency. FNS believes that this methodology is based on objective and current cost drivers and provides a reasonable basis for allocating administrative funds.

FNS did not include the factor in the work group's second proposal which would have allocated funds based on each Region's share of tailgate operations, home deliveries, and/or multiple warehouses. FNS recognizes that such operations are important program components and contribute significantly to the cost of administering a program. Some State agencies expend considerable resources in conducting tailgate operations and maintaining multiple warehouses. However, this factor, as proposed by the work group, did not differentiate among the degree of service provided. In addition, exclusion of this factor was not expected to significantly impact Regional allocations because 90 percent of FDPIR programs have some degree of tailgate operations, home delivery, and/or multiple warehouses.

As a result, FNS opted to disregard this factor and provide proportionally greater emphasis to the other two factors outlined above. FNS believes that this approach offers a proper balance by providing each FNS Regional Office with funding to support the operational costs of all of its programs in relation to the number of participants served by each State agency.

The decision to pilot a new funding methodology in fiscal year 2008 was prompted by Congressional action. Recognizing the funding inequities in FDPIR, Congress appropriated a total of $34.7 million in FDPIR administrative funding for fiscal year 2008, an increase of nearly $7.7 million over the fiscal year 2007 level. Report language from both the House of Representatives and the Senate (House Report 110-258, accompanying H.R. 3161, and Senate Committee Report 110-134, accompanying S. 1859, respectively) communicated Congress' expectation that this funding be used “to address current inequities among tribes in the allocation of funds * * *.” On October 31, 2007, FNS announced the decision to pilot the funding methodology in a letter to elected Tribal leaders and State officials. In that letter, FNS sought comments with regard to the impact of the piloted methodology on the program. The comments received were considered in the development of this proposed rule.

FNS received written comments from three elected Tribal leaders, one State official, and two FDPIR program administrators regarding FNS' decision. Five commenters supported the methodology as implemented, while one commenter opposed the allocation methodology. Of the five commenters supporting the funding allocation methodology, four specifically cited sufficient or improved State agency funding levels as one of the reasons for their support. Three of the five commenters cited equity or fairness as another factor in their support of the methodology. Three supporting commenters cited the funding methodology's positive impact on the program services provided to participants.

One commenter opposed the manner in which administrative funds were allocated to the Regional Offices in fiscal year 2008. The commenter stated three key objections: FNS did not consult with the Tribes and State agencies prior to pilot implementation; the funding methodology implemented in fiscal year 2008 was not one of the three methodologies recommended by the work group; and FNS failed to address the work group's recommendation regarding food storage and transportation costs for the seven independent FDPIR programs serviced by the Montana and North Dakota State agencies.

Regarding the commenter's first objection referencing Tribal consultation, the work group and FNS consulted with elected Tribal leaders and State officials on multiple occasions prior to the piloting the methodology, as outlined above. The decision to pilot the methodology was made in response to the Congressional expectation that FNS address funding inequities with the additional funds provided in fiscal year 2008. The pilot permitted FNS to test the new methodology in fiscal year 2008 in order to meet this Congressional expectation, while at the same time continuing to consult with elected Tribal leaders and State officials. The consultation process continues in this proposed rulemaking.

Regarding the commenter's second objection, the commenter was correct in asserting that the funding methodology implemented was not one of the three methodologies recommended by the work group. However, as described above, the funding methodology which was implemented was based in large part on one of the work group's three proposals. The pilot included the two work group-proposed factors regarding the proportionate Regional Office shares of national program participation and the current number of State administering agencies. FNS removed the work group-proposed factor which would have allocated funds based on each Region's share of tailgate operations, home deliveries, and/or multiple warehouses, because it did not differentiate among the degree of service provided and was not expected tosignificantly impact Regional allocations.

Regarding the commenter's final objection, currently, the Montana and North Dakota State agencies maintain central warehouses to receive, store, and transport USDA foods to local programs that they administer. In addition, these two State agencies perform ordering, storage, and delivery functions for seven programs that are not under the administration of the two State agencies. Both Montana and North Dakota receive FDPIR administrative funds to support the Federal share of costs for warehousing and transporting USDA foods to both the independent programs and those programs that they administer directly. Because the two State agencies are performing functions similar to those performed by FNS, the work group recommended that Montana's and North Dakota's warehousing and transportation costs for the seven independent programs be paid with Federal funds appropriated for the purchase and delivery of USDA foods (i.e.,“food funds”) rather than administrative funds.

However, funds appropriated for the purchase and delivery of USDA foods may only be used for food shipments to and from a USDA-contracted warehouse, or directly to a FDPIR program operator. The seven programs are too small to regularly take full-truck shipments directly from a vendor without significantly exceeding maximum inventory requirements and risking foods going out of condition. Therefore, the only way to shift their warehousing and delivery costs from administrative to food dollars would be to require that these independent operators be served by a USDA-contracted warehouse rather than the Montana and North Dakota warehouses.

FNS researched this approach and found no evidence that the seven programs would receive better service from the national warehouse. Serving these independent programs through a USDA-contracted warehouse would increase costs significantly. Also, the Montana and North Dakota State agencies expressed objections in writing to this proposal. Since there is no evidence indicating that the seven independent programs would receive better service from the national warehouse, this was not considered a workable solution.

As a result of the increase in the program appropriation and the pilot funding allocation methodology, the FNS Mountain Plains Regional Office, which provides administrative funds to Montana and North Dakota, received a sufficient increase in funding in fiscal year 2008 to fully meet the budget requests of all State agencies. On April 22, 2008, the Director, FNS Food Distribution Division advised the Montana and North Dakota State agencies and the affected FDPIR program operators that FNS did not intend to alter current warehousing and delivery arrangements for the seven independent programs served by Montana and North Dakota. They were also advised that the FNS National Office will work with the Mountain Plains Regional Office to ensure that future administrative funding needs are met.

Based on the comments submitted on the pilot implementation of the funding methodology, FNS is proposing revisions to Federal regulations at 7 CFR 253.11 to clarify existing program requirements relative to the allocation of appropriated FDPIR administrative funds to the FNS Regional Offices, and the further allocation of such funds to State agencies. FNS is also proposing revisions to 7 CFR 253.11 in order to make clear State agency administrative funding matching requirements. Additional guidance is contained in FNS Instruction 700-1, Rev. 2, FNS Instruction 716-4, Rev. 1, and FNS Handbook 501.

First, FNS proposes to amend 7 CFR 253.11 by revising the title of that section to read “Administrative funds” rather than “Administrative funds for State agencies.” This proposed revision would provide greater flexibility, permitting further explanation of the FNS National Office administrative funding allocations to FNS Regional Offices. This revision is necessary to more clearly detail the funding allocation process.

As an overview, this rule proposes to amend 7 CFR 253.11(a) by removing the current regulatory language from that section, and replacing it with language specific to how administrative funds are allocated to FNS Regional Offices. This rule further proposes to redesignate paragraphs (b) through (h) of current 7 CFR 253.11 as paragraphs (d) through (j). Applicable provisions contained in current 7 CFR 253.11(a) would be rewritten in plain language and set out in the newly designated and proposed paragraphs (b) and (c). Additional information reflecting current program requirements would be added to newly designated paragraph (c) of this proposed section as well.

In new section 253.11(a), we are proposing to clarify that administrative funds would be allocated to the FNS Regional Offices in the following manner: Sixty-five percent of all administrative funds available nationally would be allocated to each FNS Regional Office in proportion to its share of the number of participants nationally, averaged over the three previous fiscal years; and thirty-five percent of all administrative funds available nationally would be allocated to each FNS Regional Office in proportion to its share of the total current number of State agencies administering the program nationally.

As an outcome of the pilot implementation, FNS identified the need to incorporate regulatory language to ensure that the funding methodology does not have undue negative impact on individual FDPIR State agencies. FNS recognized that funding must be made available to support participation of new State agencies for which prior participation data is not available. Based on State agency total approved budgets, FNS also recognized the need to ensure that funding not needed by one FNS Regional Office could be distributed to other FNS Regional Offices. Finally, FNS recognized that some flexibility is required within the funding allocation methodology described above in order for it to meet 75 percent of State agency administrative costs approved by the FNS Regional Offices, should funding levels permit. Therefore, this proposed rule would permit the FNS National Office to allocate administrative funds to the FNS Regional Offices based on the proportionate shares of national program participation and the current number of State agencies administering the program, “to the extent practicable * * *.” This language would permit FNS some limited flexibility to meet individual State agency administrative funding needs not reflected under the two weighted factors. However, similar to current practice, the FNS National Office would allocate the vast majority of all administrative funds to the FNS Regional Offices based on each Region's proportionate shares of national program participation and the current number of State agencies administering the program.

Regarding the current requirement at 7 CFR 253.11(a) that annual budget submissions and revisions must be approved by FNS, we propose to relocate this requirement to the new proposed section 253.11(b) with the clarification that the budget request must be sent to the FNS Regional Office for approval. This proposed requirement is consistent with FNS Instruction 700-1, Rev. 2, which gives each FNS Regional Administrator the authority to review State agency budget submissions. The current provision at 7CFR 253.11(a) requiring State agencies to submit only those administrative costs which are allowable under 7 CFR part 277 would be relocated to proposed section 253.11(b) as well. This requirement is currently contained in FNS Instruction 716-4, Rev. 1, and FNS Handbook 501. Finally, the current provision at 7 CFR 253.11(a) which specifies that, within funding limitations, FNS provides State agencies with administrative funds necessary to meet 75 percent of approved administrative costs would be revised in plain language and relocated to proposed section 253.11(b), with the clarification that FNS Regional Offices provide the administrative funds to State agencies. This reflects current program practice.

The newly designated section 253.11(c) would set forth the State agency matching requirements. Paragraph (c)(1) of this proposed section would specify that the State agency matching requirement is 25 percent of approved administrative costs, and that both cash and non-cash contributions may be used to meet the matching requirement. This is currently required via FNS Instruction 716-4, Rev. 1. For the sake of clarity, paragraph (c)(1) of this proposed section would list the criteria for allowable cash and non-cash contributions, similar to what is currently provided in 7 CFR part 277.

The current provision at 7 CFR 253.11(a) regarding requests for Federal matching rates that exceed 75 percent and compelling justification would be rewritten in plain language and relocated to the newly designated 7 CFR 253.11(c)(2). In paragraph (c)(2) of this proposed section, consistent with FNS Instruction 716-4, Rev. 1, and FNS Handbook 501, we require the State agency to submit a summary statement and supporting financial documents to the FNS Regional Office when providing compelling justification in its budget proposal. Furthermore, we propose to add a provision which gives the FNS Regional Office the discretion to provide additional administrative funds beyond 75 percent. This is consistent with current program practice, and the Regional Office authority to approve State agency budget requests per proposed section 253.11(b). Finally, the types of acceptable compelling justification provided in current 7 CFR 253.11(a) and FNS Instruction 716-4, Rev. 1, would be specified in paragraph (c)(2) of this proposed section. Per proposed paragraph (c)(2) of this section, compelling justification may include but would not be limited to: the need for additional administrative funding for startup costs during the first year of program operation, or the need to prevent a reduction in the level of necessary and reasonable program services provided.

Accordingly, 7 CFR part 253 is proposed to be amended as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2010-0852; Directorate Identifier 2010-NM-005-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We have lengthened the 30-day comment period for proposed ADs that address MCAI originated by aviation authorities of other countries to provide adequate time for interested parties to submit comments. The comment period for these proposed ADs is now typically 45 days, which is consistent with the comment period for domestic transport ADs.

We will post all comments we receive, without change, tohttp://www.regulations.gov,including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On September 29, 2005, we issued AD 2005-20-32, Amendment 39-14329 (70 FR 59263, October 12, 2005). That AD required actions intended to address an unsafe condition on the products listed above.

Since we issued AD 2005-20-32, we have determined that the existing inspection of the upper and lower elevator skin panels needs to be a repetitive inspection in order to adequately address the identified unsafe condition. We have also added airplane models to the applicability of this proposed AD, and we have identified additional affected elevators in Table 1 of this proposed AD. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2009-0255, dated December 1, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Foreign policy-based controls in the Export Administration Regulations (EAR) are implemented pursuant to section 6 of the Export Administration Act of 1979, as amended, (50 U.S.C. app. sections 2401-2420 (2000)) (EAA). The current foreign policy-based export controls maintained by the Bureau of Industry and Security (BIS) are set forth in the EAR (15 CFR parts 730-774), including in parts 742 (CCL Based Controls), 744 (End-User and End-Use Based Controls) and 746 (Embargoes and Other Special Controls). These controls apply to a range of countries, items, activities and persons, including: Entities acting contrary to the national security or foreign policy interests of the United States (§ 744.11); certain general purpose microprocessors for “military end-uses” and “military end-users” (§ 744.17); significant items (SI): Hot section technology for the development, production, or overhaul of commercial aircraft engines, components, and systems (§ 742.14); encryption items (§ 742.15); crime control and detection items (§ 742.7); specially designed implements of torture (§ 742.11); certain firearms and related items based on the Organization of American States Model Regulations for the Control of the International Movement of Firearms, their Parts and Components and Munitions included within the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (§ 742.17); regional stability items (§ 742.6); equipment and related technical data used in the design, development, production, or use of certain rocket systems and unmanned air vehicles (§§ 742.5 and 744.3); chemical precursors and biological agents, associated equipment, technical data, and software related to the production of chemical and biological agents (§§ 742.2 and 744.4) and various chemicals included on the list of those chemicals controlled pursuant to the Chemical Weapons Convention (§ 742.18); nuclear propulsion (§ 744.5); aircraft and vessels (§ 744.7); restrictions on exports and reexports to certain persons designated as proliferators of weapons of mass destruction (§ 744.8); communication intercepting devices, software and technology (§ 742.13); embargoed countries (part 746); countries designated as supporters of acts of international terrorism (§§ 742.8, 742.9, 742.10, 742.19, 746.2, 746.4, 746.7, and 746.9); certain entities in Russia (§ 744.10); individual terrorists and terrorist organizations (§§ 744.12, 744.13 and 744.14); certain persons designated by Executive Order 13315 (“Blocking Property of the Former Iraqi Regime, Its Senior Officials and Their Family Members”) (§ 744.18); certain sanctioned entities (§ 744.20); and certain cameras to be used by military end-users or incorporated into a military commodity (§ 744.9). Attention is also given in this context to the controls on nuclear-related commodities, technology, end-uses and end-users (§§ 742.3 and 744.2), which are, in part, implemented under section 309(c) of the Nuclear Non Proliferation Act (42 U.S.C. 2139a).

Under the provisions of section 6 of the EAA, export controls maintained for foreign policy purposes require annual extension. Section 6 of the EAA requires a report to Congress when foreign policy-based export controls are extended. The EAA expired on August 20, 2001. Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of Notice of August 12, 2010 (75 FR 50681 (August 16, 2010)), continues the EAR and, to the extent permitted by law, the provisions of the EAA, in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706 (2000)). The Department of Commerce, insofar as appropriate, follows the provisions of section 6 of the EAA by reviewing its foreign policy-based export controls, requesting public comments on such controls, and preparing a report to be submitted toCongress. In January 2010, the Secretary of Commerce, on the recommendation of the Secretary of State, extended for one year all foreign policy-based export controls then in effect. BIS is now soliciting public comment on the effects of extending or modifying the existing foreign policy-based export controls for another year. Among the criteria considered in determining whether to continue or revise U.S. foreign policy-based export controls are the following:

1. The likelihood that such controls will achieve their intended foreign policy purposes, in light of other factors, including the availability from other countries of the goods, software or technology proposed for such controls;

2. Whether the foreign policy objective of such controls can be achieved through negotiations or other alternative means;

3. The compatibility of the controls with the foreign policy objectives of the United States and with overall U.S. policy toward the country subject to the controls;

4. Whether the reaction of other countries to the extension of such controls is not likely to render the controls ineffective in achieving the intended foreign policy objective or be counterproductive to U.S. foreign policy interests;

5. The comparative benefits to U.S. foreign policy objectives versus the effect of the controls on the export performance of the United States, the competitive position of the United States in the international economy, the international reputation of the United States as a supplier of goods and technology; and

6. The ability of the United States to effectively enforce the controls.

BIS is particularly interested in receiving comments on the economic impact of proliferation controls. BIS is also interested in industry information relating to the following:

1. Information on the effect of foreign policy-based export controls on sales of U.S. products to third countries (i.e.,those countries not targeted by sanctions), including the views of foreign purchasers or prospective customers regarding U.S. foreign policy-based export controls.

2. Information on controls maintained by U.S. trade partners. For example, to what extent do U.S. trade partners have similar controls on goods and technology on a worldwide basis or to specific destinations?

3. Information on licensing policies or practices by our foreign trade partners that are similar to U.S. foreign policy-based export controls, including license review criteria, use of conditions, and requirements for pre- and post-shipment verifications (preferably supported by examples of approvals, denials and foreign regulations).

4. Suggestions for revisions to foreign policy-based export controls that would bring them more into line with multilateral practice.

5. Comments or suggestions as to actions that would make multilateral controls more effective.

6. Information that illustrates the effect of foreign policy-based export controls on trade or acquisitions by intended targets of the controls.

7. Data or other information on the effect of foreign policy-based export controls on overall trade at the level of individual industrial sectors.

8. Suggestions as to how to measure the effect of foreign policy-based export controls on trade.

9. Information on the use of foreign policy-based export controls on targeted countries, entities, or individuals.

BIS is also interested in comments relating generally to the extension or revision of existing foreign policy-based export controls.

Parties submitting comments are asked to be as specific as possible. All comments received before the close of the comment period will be considered by BIS in reviewing the controls and developing the report to Congress.

All comments received in response to this notice will be displayed on BIS's Freedom of Information Act (FOIA) Web site athttp://www.bis.doc.gov/foia.

On September 10, 2003, the Treasury Department and the IRS published in theFederal Register(68 FR 53448, REG-146893-02 and REG-115037-00) proposed regulations relating to the treatment of controlled services transactions and the allocation of income from intangible property, in particular with respect to contributions by a controlled party to the value of intangible property owned by another controlled party. On August 4, 2006, the Treasury Department and the IRS published in theFederal Register(71 FR 44466, TD 9278, REG-146893-02, REG-115037-00, and REG-138603-03) temporary regulations relating to the treatment of controlled services transactions, the allocation of income from intangible property, and stewardship expenses under Treas. Reg. § 1.861-8(e)(4). A notice of proposed rulemaking cross-referencing the temporary regulations was published in theFederal Registeron the same day (71 FR 44247). Written comments responding to the notice of proposed rulemaking were received, and a public hearing was held on October 27, 2006. That notice of proposed rulemaking superseded the proposed regulations published in theFederal Registeron September 10, 2003.

On August 4, 2009, the Treasury Department and the IRS published in theFederal Register(74 FR 38830, TD 9456) final regulations that are generally consistent with the proposed regulations that were published on August 4, 2006, in theFederal Register(71 FR 44247), and removed the corresponding temporary regulations.

Accordingly, under the authority of 26 U.S.C. 7805, the notice of proposed rulemaking (REG-146893-02 and REG-115037-00) published in theFederal Registeron September 10, 2003 (68 FR 53448) is withdrawn.

In proposed rule document 2010-21073 beginning on page 53172 in the issue of Monday, August 30, 2010, make the following correction:

The following correction is proposed to fix technical errors in the Idaho Roadless Area Rule published in theFederal RegisterOctober 16, 2008 (73 FR 61456) and associated maps. These corrections were discussed with the State of Idaho Implementation Committee on September 11, 2009, and no concerns were expressed by the Committee. These corrections would facilitate the development of the Big Creek Fuels Reduction Project on the Krassel Ranger District, Payette National Forest. The project is being developed to reduce fuels in the wildland urban interface around the community of Big Creek. The corrections are needed so the appropriate treatment may be designed. The public should be aware that the indexing of management themes for individual Idaho Roadless Areas set forth in § 294.29 is an approximation (to the nearest hundred acres).

The Idaho Roadless Rule and associated maps mistakenly identify a Forest Plan Special Area (Wild and Scenic River) along Big Creek. During the Idaho rulemaking, Forest Plan Special Areas were identified where the management is governed by specific Agency directives and forest plan direction. The 2003 Southwest Idaho Ecogroup Land and Resource Management Plan Final Environmental Impact Statement (FEIS) included an eligibility study for Big Creek. However, the Agency's Record of Decision did not find Big Creek eligible for Wild and Scenic River designation. As the Payette Forest Plan did not establish a special management area, the Idaho rulemaking and associated maps should be conformed to remove this erroneous classification. These proposed corrections occur in T20N, R8E, sections 13-14 and 22-24; T20N, R9E, sections 2-3, 10, 15, and 17-18; T21N, R9E, sections 13, 23-24, 26, and 34-36, Boise Meridian.

The rule and associated maps will be corrected as follows:

• Big Creek Fringe Idaho Roadless Area: Change 365 acres of Forest Plan Special Area to Backcountry/Restoration and deletes 3 acres of private ownership. The FPSA classification will be removed in the rule.

• Placer Creek Idaho Roadless Area: Change 98 acres of Forest Plan Special Area to Backcountry/Restoration; and 14 acres of Forest Plan Special Area to Primitive. The FPSA classification will be removed in the rule.

• Secesh Idaho Roadless Area: Change 1,086 acres of Forest Plan Special Area to Backcountry/Restoration.

• Smith Creek Roadless Area: Change 14 acres of Forest Plan Special Area to Primitive.

The Idaho Roadless Rule erroneously did not identify an existing Forest Plan Special area for the Wild and Scenic River corridor along Lake Creek in the French Creek Idaho Roadless Area. The 2003 Southwest Idaho Ecogroup Land and Resource Management Plan Final Environmental Impact Statement included a suitability study for the Secesh River, including Lake Creek. The Record of Decision found the Secesh River, including Lake Creek, eligible for Wild and Scenic River designation and the Payette National Forest Land and Resource Management Plans established a special management area. Therefore,the proposal is to correct the associated maps for this area. The correction involves moving 1,000 acres of Forest Plan Special Area to Backcountry/Restoration to and occurs in T22N, R4E, sections 10, 15, 22, 26-27, and 35, Boise Meridian.

On July 26, 2010, the Access Board published a notice of proposed rulemaking (NPRM) in theFederal Registerto revise and update its accessibility guidelines for buses, over-the-road buses, and vans. 75 FR 43748 (July 26, 2010). The comment period on the proposed rule ends on November 23, 2010. The Access Board will hold two public hearings on the proposed rule during the comment period. The dates and locations of the public hearings are provided in this notice. The public hearing locations are accessible to individuals with disabilities. Sign language interpreters and real-time captioning will be provided at the public hearings. For the comfort of other participants, persons attending the public hearings are requested to refrain from using perfume, cologne, and other fragrances. To pre-register to testify, please contact Kathy Johnson at (202) 272-0041 orJohnson@access-board.gov.

NARA facilities' operating hours are currently published in 36 CFR parts 1253, 1254 and 1280. Any proposed changes to facility operating hours are made through revisions to the CFR, which include publishing the proposed changes in theFederal Registerfor public notice and comment. The proposed revisions are open for comment for 60 days and after the comment period closes and resolution of any comments received the proposed changes are made final by publication of the final rule in theFederal Register.The hours of operation published in the CFR are also available onhttp://www.archives.gov,NARA's official Web site; by calling a dedicated telephone number for each facility that provides the public with the facilities' operating hours; and posted locally at each facility.

NARA is proposing to remove all facilities' hours of operation from our regulations and instead direct individuals to obtain that information fromhttp://www.archives.gov,NARA's official Web site; dedicated telephone numbers; and local postings. The removal of the operating hours from the CFR will enable individual facilities to tailor their operating hours to their customers' needs in a more flexible and timely manner. Individuals will continue to be able to obtain hours of operation information at a facility's physical location and via telephone, including out-going voice messaging systems.

Because the authority to change hours will reside with each locality, we are proposing to revise our regulations to incorporate a process for changing hours of operation that will provide the public with advance notice of a change in hours and will include justification for the change in writing. The procedures include posting the proposed changes at the facility in a public area; onhttp://www.archives.gov,NARA's official Web site; and on other online sites on whichthe facility may have a specific presence.

NARA sought input regarding these proposed changes from its staff. All five staff members who offered input agreed with the proposed changes. Multiple staff suggested minor changes to the text. One staff member was concerned that NARA's Web site would be the public's only method of determining a facility's hours of operation, but as noted above, individuals also have the option of calling a dedicated telephone number for the hours of operation or see the hours posted at the facility. Another staff member gave suggestions for using templates at all facilities so that communicating proposed changes in hours would be consistent nationwide.

Before preparing the proposed revisions, we also sought suggestions from the public on how to improve communication with the public about proposed changes to facility operating hours. Two members of the public were concerned that the public should be informed in full why changes in hours of operation were being made. One of those same individuals and a third member of the public suggested that changes in hours of operation be communicated through a variety of outlets. We agree with these suggestions, and we believe our proposed notification method will provide an explanation and offer the public a method of commenting on the proposed changes. These are the objectives of this proposed rule, and are addressed specifically therein. This third individual also suggested that a facility, once it has changed its hours, be required to maintain those hours for a minimum of six months. While a specific timeframe is not included in this proposal, we feel that the concern is addressed in the proposed rule which prevents arbitrary changes and requiring evidence of a business need to change the hours of operation.

This proposed rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities because it affects Federal agencies and individual researchers. This regulation does not have any federalism implications.

For the reasons set forth in the preamble, NARA proposes to amend 36 CFR parts 1253, 1254 and 1280 to read as follows:

1. Revise part 1253 to read as follows:

This is a summary of the Commission's Further Notice of Proposed Rulemaking (FNPRM) in WT Docket No. 07-250; FCC 10-145, adopted August 5, 2010, and released on August 5, 2010. This summary should be read with its companion document, the Policy Statement and Second Report and Order summary published elsewhere in this issue of theFederal Register. The full text of the FNPRM is available for public inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. It also may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554; the contractor's Web site,http://www.bcpiweb.com;or by calling (800) 378-3160, facsimile (202) 488-5563, or e-mailFCC@BCPIWEB.com.Copies of the Further Notice also may be obtained via the Commission's Electronic CommentFiling System (ECFS) by entering the docket number WT Docket No. 07-250. Additionally, the complete item is available on the Federal Communications Commission's Web site athttp://www.fcc.gov.

In this FNPRM the Commission seeks comment on potential changes to its hearing aid compatibility rules in three respects. First, the Commission proposes to extend the scope of the rules beyond the current category of Commercial Mobile Radio Service (CMRS) to include handsets used to provide wireless voice communications over any type of network among members of the public or a substantial portion of the public. The Commission seeks comment on this proposal, on whether considerations of technological feasibility or marketability prevent application of its hearing aid compatibility requirements to any class of these handsets, and on what transition period is appropriate for applying the requirements to newly covered handsets. Second, the Commission seeks further comment on whether to extend its in-store testing requirement beyond retail stores owned or operated by service providers to some or all other retail outlets. Third, the Commission seeks comment on whether to extend to all circumstances the ability to meet hearing aid compatibility standards for radio frequency (RF) interference reduction for GSM operations in the 1900 MHz band through software that enables the user to reduce maximum power output by up to 2.5 decibels (dB).

2. The Commission has concluded that its wireless hearing aid compatibility rules must provide people who use hearing aids and cochlear implants with continuing access to the most advanced and innovative communications technologies as they develop, while at the same time maximizing the conditions for innovation and investment. Consistent with this principle, the Commission proposes that its hearing aid compatibility requirements should apply to all customer equipment used to provide wireless voice communications over any type of network among members of the public or a substantial portion of the public via a built-in speaker where the equipment is typically held to the ear, so long as meeting hearing aid compatibility standards is technologically feasible and would not increase costs to an extent that would preclude successful marketing.

3.Statutory Scope.First, the Commission proposes to find that the scope of the Hearing Aid Compatibility Act broadly encompasses devices used to provide voice communications. The Hearing Aid Compatibility Act, 47 U.S.C. 610, directs the Commission to establish regulations to ensure reasonable access by persons with hearing loss to “telephone service.” To achieve this end, the Act directs that the Commission require “telephones” to meet hearing aid compatibility standards. The Act provides exemptions for, among other things, “telephones used with public mobile services” and “telephones used with private radio services,” but stipulates, that the Commission should periodically review these exemptions and revoke or limit them if necessary to reflect developments over time in technology and usage patterns. The Commission modified the exemption for wireless phones in 2003.

4. Neither the Hearing Aid Compatibility Act nor the broader Communications Act defines the terms “telephone” or “telephone service.” In view of the other provisions in the Act, however, the Commission proposes to interpret the term “telephone,” as used in the Hearing Aid Compatibility Act, to encompass anything that is commonly understood to be a telephone or to provide telephone service, as that understanding may evolve over time, regardless of regulatory classifications evoked elsewhere in the Communications Act. The Commission seeks comment on this proposed finding and whether such a reading best fulfills the Congressional intent that “all persons should have available the best telephone service which is technologically and economically feasible.” Moreover, the Commission seeks comment on whether an evolving definition of “telephone,” for purposes of the Hearing Aid Compatibility Act, is consistent with the directive that the Commission revoke or limit the exemptions for public mobile services and private radio services over time to reflect developments in technology and usage patterns.

5. Through the Hearing Aid Compatibility Act, Congress charged the Commission with the responsibility of establishing regulations as necessary to ensure access to telephone service by persons with hearing loss. As cell phone use became integrated into everyday American life, the Commission lifted the prior exemption for digital wireless telephones and subjected them to hearing aid compatibility requirements under its rules. The Commission proposes to find that to carry out Congress's mandate to ensure access to telephone service by persons with hearing loss, it would serve the public interest to interpret the definition of telephone to include wireless handsets that are used for voice communications among members of the public or a substantial portion of the public, regardless of whether the services provisioned through the handset may fall beyond the currently covered category of CMRS. The Commission seeks comment on this proposed finding.

6. In addition, the Commission proposes to find that this broad interpretation of the definition of telephone should include multi-use devices that can function as traditional telephones typically used by being held to the ear, but which may have other capabilities and serve additional purposes. While the Commission recognizes that rendering the telephone feature of such a device hearing aid-compatible may require adjustments to other features over which the Commission might otherwise not have jurisdiction, the Commission proposes to find that under these circumstances, the Commission nevertheless would have authority to require adjustments to both telephone features and other aspects of the device in order to render the device hearing aid-compatible. Under the Hearing Aid Compatibility Act, the Commission is specifically directed to establish such regulations as are necessary to ensure access to telephone service by persons with hearing loss. To the extent achievement of this goal may require imposing hearing aid compatibility requirements on multi-use devices with telephonic capabilities, as described above, the Commission proposes to find that it has jurisdiction to require hearing aid compatibility for such devices, and the Commission seeks comment on this proposed finding.

7.Scope of Proposed Rule.The Commission's proposal herein to extend the scope of the hearing aid compatibility rules is limited to wireless handsets that afford an opportunity to communicate by voice with members of the public or with users of a network that is open to the public or a substantial portion of the public. Thus, in a manner broadly consistent with the distinction drawn in the Hearing Aid Compatibility Act between “publicmobile services” and “private radio services,” the Commission proposes not to extend the rules to certain non-interconnected systems that are used solely for internal communications, such as public safety or dispatch networks. While the Commission recognizes that there may be important interests in affording access to these systems to employees who use hearing aids, the Commission tentatively concludes that given the very different circumstances of the market for these handsets, and in the absence of an existing universe of handsets meeting hearing aid compatibility standards, the burdens on manufacturers and system operators of satisfying hearing aid compatibility requirements would outweigh the public benefits. The Commission seeks comment on this analysis, and in particular on whether the four criteria for revoking or limiting the wireless exemption are satisfied for any such internal systems.

8. At the same time, the Commission's proposal would include all otherwise covered handsets that are used for voice communication with members of the public or a substantial portion of the public, including those that may not be interconnected with the public switched telephone network but can access another network that is open to members of the public. To the extent a handset otherwise used for internal communications can also be used for voice communications with members of the public outside the internal network, it would also be covered under this proposal. In addition, this proposal would cover handsets used for Mobile Satellite Service (MSS) that otherwise fall within the scope of the rule. In addressing the four criteria set forth below, commenters should consider whether the circumstances surrounding these or any other classes of handset should cause such handsets to be excluded from the rule.

9.Statutory Criteria.Under the Hearing Aid Compatibility Act, the Commission is to revoke or limit the wireless exemption if four criteria are satisfied: (1) Such revocation or limitation is in the public interest; (2) continuation of the exemption without such revocation or limitation would have an adverse effect on individuals with hearing loss; (3) compliance with the requirements adopted is technologically feasible for the telephones to which the exemption applies; and (4) compliance with the requirements adopted would not increase costs to such an extent that the telephones to which the exemption applies could not be successfully marketed. The Commission seeks comment on whether these criteria are met with respect to handsets used for voice communications with members of the public or a substantial portion of the public.

10.Adverse Effect on People with Hearing Loss.The Commission proposes to find that failure to extend hearing aid compatibility requirements broadly to handsets used for voice communications with members of the public or a substantial portion of the public would have an adverse effect on people with hearing loss. In the2003 Hearing Aid Compatibility Order, 1 the Commission determined that continuing to exempt handsets providing certain CMRS from hearing aid compatibility requirements would have an adverse effect on individuals with hearing loss because the lack of hearing aid-compatible digital phones rendered them unable to take advantage of features of these phones that were becoming increasingly central to American life. The Commission proposes to find that this is now true broadly for the range of handsets used to provide wireless voice communications, including those operating over new and developing technologies. If these new handsets are not made hearing aid-compatible, consumers with hearing loss would be largely denied the opportunity to use advanced functionalities and services that are rapidly becoming commonplace in our society. Given the rapid pace of technological innovation and the development of new modes of wireless voice communication, the Commission is concerned about the consequences of waiting until a particular technology is in widespread use before beginning a proceeding to determine that lack of access to that technology adversely affects individuals with hearing loss. Rather, the Commission suggests that it is the inability to access innovative technologies as they develop that has an adverse effect. The Commission therefore proposes, in order to encourage manufacturers to consider hearing aid compatibility at the earliest stages of the product design process, to establish a broad scope for hearing aid compatibility obligations that is not dependent on particular forms of network technology. The Commission proposes to find that this broad scope is necessary to fulfill the goal of the Hearing Aid Compatibility Act that people who use hearing aids and cochlear implants have access to the fullest feasible extent to all means of voice communication. The Commission seeks comment on this analysis.

11.Public Interest.The Commission also proposes to find that expanding the scope of its hearing aid compatibility requirements as described would serve the public interest. In 2003, the Commission found that modifying the wireless hearing aid compatibility exemption promoted the public interest because, among other reasons, it enabled people with hearing loss to enjoy the public safety and other benefits of digital wireless phones and it enabled all consumers to communicate more easily with those who have hearing loss. The Hearing Aid Compatibility Act makes clear that consumers with hearing loss should be afforded equal access to communications networks to the fullest extent feasible. To ensure the public interest is served in such fashion, the Commission's stated policy is to encourage manufacturers to consider hearing aid compatibility at the earliest stages of the product design process. Commenters should address the Commission's proposed finding that further modification of the exemption to reach handsets using new technologies is in the public interest today.

12. In addition, the Commission is unconvinced to date by arguments that applying hearing aid compatibility requirements to MSS would not confer significant public benefits. To the contrary, even if MSS has relatively few consumer users, both users who subscribe as individuals and those who are provided access to MSS by their employers would benefit from the option to obtain hearing aid-compatible telephones. Furthermore, the usage of MSS may increase. Indeed, due to its ubiquitous coverage and its resistance to disruption from terrestrial disasters, in some situations MSS has important advantages over terrestrial wireless service. Therefore, the Commission proposes to find that failure to apply hearing aid compatibility requirements to MSS handsets would adversely affect individuals with hearing loss, and that it would serve the public interest to ensure that individuals with hearing loss have access to hearing aid-compatible MSS handsets. The Commission seeks comment on this analysis.

13.Technological Feasibility.In the2003 Hearing Aid Compatibility Order, the Commission found that meeting hearing aid compatibility standards was technologically feasible for the telephones covered by that order in large part because several handsets were already on the market that met thosestandards. To the extent that handsets are currently on the market or are planned for introduction that fall within the rule coverage that the Commission proposes today, but that are not covered by the existing rule, the Commission seeks comment on whether they would meet the existing American National Standards Institute (ANSI) standard (or a similar performance standard, for frequency bands and air interfaces that are not addressed by the existing standard). Moreover, because the hearing aid compatibility standards are already being met for handsets that operate on a variety of 2G and 3G air interfaces over two well separated frequency bands, the Commission considers it likely, in the absence of evidence to the contrary, that the same standards could also be met for handsets used for similar services that are not within the class of currently covered CMRS. While the Commission recognizes that technological feasibility cannot be predicted with certainty for future handsets, the Commission notes that the Hearing Aid Compatibility Act expressly provides for waivers for new telephones or telephones associated with a new technology or service in cases of technological infeasibility. Therefore, absent evidence that meeting hearing aid compatibility standards is not technologically feasible for any class of handsets or service, the Commission anticipates that compliance will be technologically feasible. Commenters arguing that compliance is not technologically feasible should provide specific engineering evidence related to a defined class of handsets.

14. The Commission seeks comment on how its hearing aid compatibility rules should address circumstances where voice capability may be enabled on a handset by a party other than the manufacturer, particularly where adding the new voice capability may affect operating parameters of the handset such as the frequency range, modulation type, maximum output power, or other parameters specified in the Commission's rules. The Commission's rules for equipment authorization hold the grantee to be the responsible party to ensure continued compliance of the handset and require the grantee to inform the Commission if these parameters change. The Commission seeks comment on the proper procedures for a manufacturer to test the hearing aid compatibility of voice functions that are not initially installed into the phone but may be enabled, for example, by the installation of a software program that affects the circumstances under which the transmitter operates. The Commission seeks comment on whether there are other ways to ascertain and regulate the hearing aid compatibility of such functions, for example, at the time the service provider or applications store enables that software. The Commission also seeks comment on the appropriate regulatory treatment if the hearing aid compatibility of these functions cannot be tested; in particular, whether a handset that meets hearing aid compatibility standards for all voice operations built into the phone but can also accommodate software-added voice operations that cannot be tested may be counted as hearing aid-compatible. Commenters should consider handsets that can provide additional voice capabilities to those already available in the off-the-shelf handset via the installation of software, as well as handsets whose only, or initial, voice capability is not incorporated off the shelf but is instead available through commercial sources. In addressing these issues, commenters should consider how voice services may be offered over new technologies such as WiMax and LTE interfaces and who may manage these capabilities.

15.Marketability.The Commission previously found that the costs of compliance would not preclude successful marketing for phones covered under the current rules because some phones meeting the standard for acoustic coupling compliance were already being marketed, the modifications needed to achieve inductive coupling capability did not appear unduly costly, and increased demand was anticipated to drive down production costs. Based on the number of hearing aid-compatible models that are already being successfully marketed across multiple air interfaces and frequency bands, the Commission anticipates, in the absence of convincing evidence to the contrary, that other telephones offering similar capabilities and meeting the same or comparable compliance standards could also be successfully marketed. The Commission seeks comment, supported by evidence, on whether this is so, and whether there is any class of handsets for which the cost of achieving compliance would preclude successful marketing. Again, the Commission notes the availability of waivers in the event future new telephones or telephones used with new technologies could not be successfully marketed due to hearing aid compatibility compliance costs.

16. Absent convincing evidence of technological infeasibility or costs that preclude marketability, the Commission intends to apply to all handsets that will be covered under its broadened rule, after an appropriate transition period, the same hearing aid compatibility requirements that apply to currently covered handsets. The Commission seeks comment on whether, for reasons of technological infeasibility or prohibitive costs, these numerical benchmarks or other rule provisions cannot be applied to any class of handsets. Again, the Commission seeks specific evidence as to why particular requirements cannot be met and what alternative requirements would be feasible and appropriate.

17.Transition Period.Ever since the Commission adopted the first wireless hearing aid compatibility rules in 2003, the Commission has consistently recognized that it takes time for handsets with new specifications to be designed, produced, and brought to market, and accordingly the Commission has afforded meaningful transition periods before new hearing aid-compatible handset deployment benchmarks and other requirements have become effective. The Commission seeks comment on the appropriate transition period for applying hearing aid compatibility benchmarks and other requirements to lines of handsets that are outside the subset of CMRS that is currently covered by Section 20.19(a). Would a two-year transition be appropriate, consistent with the lead time the Commission afforded to comply with the original requirements for acoustic coupling compatibility? Would a shorter period, such as one year, be reasonable given that manufacturers are already meeting hearing aid compatibility requirements for currently covered classes of handsets, and many of the engineering solutions reached for those handsets may be transferrable to others? Is it likely that many handsets will already meet hearing aid compatibility standards either as already marketed or as currently planned, and therefore all that will be required is testing of existing handsets rather than introduction of new products? On the other hand, are there special design difficulties that may render a longer transition period necessary for some classes of handsets? For example, are there any special characteristics of satellite transmission that may require particular transition rules for MSS? In consideration of the time needed for phones to progress from the production line to service providers' offerings, should the transition period be longer for service providers than for manufacturers, and should it be longer for smaller service providers than fornationwide carriers? Parties are invited to comment on these and any other transition issues, either for all newly covered handsets or some subset of those handsets.

18. Section 20.19(c) and (d) of the Commission's rules requires that wireless service providers make their hearing aid-compatible handset models available for consumer testing in each retail store that they own or operate. This testing requirement does not apply to non-service providers, such as individuals, independent retailers, importers, or manufacturers.

19. The Commission seeks targeted comment on whether the in-store testing requirement should be extended to some or all retail outlets other than those owned or operated by service providers. Given the growth of new channels of distribution, extension of the in-store testing requirement would help to ensure that consumers have the information they need to choose a handset that will operate correctly with their hearing aid or cochlear implant. The Commission seeks comment as to whether, if the Commission does extend the in-store testing requirement to some retail stores other than those owned or operated by service providers, the Commission should extend it to all entities that sell handsets to consumers through physical locations or whether some of these retailers should be excluded from the requirement based on their general customer service practices, the types or numbers of handsets that they sell, their size, or other considerations.

20. In addition to allowing consumers to test handsets, the Commission seeks comment on whether it should require independent retailers to allow a customer with hearing loss to return a handset without penalty, either instead of or in addition to an in-store testing requirement. The Commission notes that the Commission previously encouraged wireless service providers to provide a 30 day trial period or otherwise be flexible on their return policies for consumers seeking access to compliant phones. The Commission reiterates that a flexible return policy could help consumers with hearing loss by providing them with additional time and opportunity to ensure that their handset is compatible with their hearing aid.

21. The Commission also seeks comment on the Commission's authority to extend the in-store testing requirement beyond service providers. First, the Commission seeks comment on interpreting Sections 1 and 2 of the Communications Act, coupled with that Act's Section 3 definition of “radio communications,” to cover retail operations that have become enmeshed in the provision of wireless service. The Commission seeks comment on whether a retailer engaged in the sale of wireless handsets is subject to the Commission's general jurisdictional grant because it is engaged in providing “services,” including the sale of “instrumentalities, facilities, [and] apparatus * * * incidental to * * * transmission, within the meaning of Section 3.”

22. Further, Section 302a of the Act authorizes the Commission to “make reasonable regulations * * * governing the interference potential of handsets which in their operation are capable of emitting radio frequency energy * * * in sufficient degree to cause harmful interference to radio communications * * *” Section 302a further provides that “[n]o person shall * * * sell, offer for sale, * * *, or use devices, which fail to comply with regulations promulgated pursuant to this section.” The Commission seeks comment on whether expanding in-store testing requirements to help consumers operate equipment in a manner that does not cause interference to their hearing aids would fall within its jurisdiction under these provisions. In addition, the language of the Hearing Aid Compatibility Act itself is expansive, and it clearly envisions that the Commission should exercise its mandate broadly by “establish[ing] such regulations as are necessary” to ensure access to telephone service by persons with hearing loss. The Commission seeks comment on whether this language provides a basis for exercising its jurisdiction over additional parties so that the Commission may continue to fulfill the mandate of the Hearing Aid Compatibility Act.

23. In the accompanying Second Report and Order, the Commission amends its rules so that a manufacturer or service provider that offers one or two handset models over the GSM air interface, which would not have to offer any hearing aid-compatible GSM models but for its size, may meet its hearing aid compatibility deployment obligation by offering one handset that allows consumers to reduce the maximum transmit power only for operations over the GSM air interface in the 1900 MHz band by up to 2.5 decibels and that meets the criteria for an M3 rating for RF interference reduction after such power reduction. The Commission here seeks comment on whether it should treat such handsets as hearing aid-compatible for all purposes.

24. Section 20.19(b) of the Commission's rules provides that a newly certified handset is hearing aid-compatible if it meets the standard set forth in the 2007 revision of ANSI Standard C63.19, and that standard states that the handset must be tested using its maximum rated RF output power. The requirement to test for hearing aid compatibility at full power serves the important goal of ensuring that people with hearing loss have equal access to all of the service quality and performance that a given wireless phone provides. At the same time, meeting the RF interference reduction standard for phones operating over the GSM air interface in the 1900 MHz band poses significant technical challenges, particularly for phones with certain desirable form factors. Moreover, as a legacy 2G network, GSM is in the process of being supplanted by newer and more powerful technologies. Under these circumstances, the Commission seeks comment on whether it is in the public interest to relax the requirement to test handsets for hearing aid compatibility at full power in order to facilitate the near-term availability of desirable handsets to consumers. The Commission welcomes data on the effects that a 2.5 dB reduction in maximum power output will have on coverage, as well as any other effects on consumers with or without hearing loss. In addition, the Commission asks commenters to address how the proposed revision of ANSI Standard C63.19, which would make it approximately 2.2 dB easier for a GSM phone to achieve an M3 rating, should affect the Commission's analysis. Does the expected revision, by making it likely that many handsets will no longer need to reduce their power to meet the M3 criteria, ameliorate any negative effects of a rule change by rendering it less likely that companies will use that rule change beyond the near term? Or does the imminent prospect of a standards change that may largely eliminate the apparent problem counsel against further adjustments to the Commission's rules to address that problem?

25. The Commission proposes to find that if the Commission were to extend the ability to meet hearing aid compatibility standards by allowing the user to reduce the maximum power for GSM operations in the 1900 MHz band, the Commission would do so subject to the same conditions that it has imposed in the context of thede minimisrule. Thus, the handset would have tooperate at full power when calling 911, and the manufacturer or service provider would have to disclose that activation of a special mode is required to meet the hearing aid compatibility standard and must explain how to activate the special mode and the possibility of a loss of coverage in the device manual or product insert. The Commission seeks comment on these and any other possible conditions.

26. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),2 the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities of the policies and rules proposed in this Further Notice of Proposed Rule Making (FNPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM provided in Section III.C.2. of this summary. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).3

27. Although Section 213 of the Consolidated Appropriations Act of 2000 provides that the RFA shall not apply to the rules and competitive bidding procedures for frequencies in the 746-806 MHz Band,4 the Commission believes that it would serve the public interest to analyze the possible significant economic impact of the proposed policy and rule changes in this band on small entities. Accordingly, this IRFA contains an analysis of this impact in connection with all spectrum that falls within the scope of this Further Notice, including spectrum in the 746-806 MHz Band.

28. The FNPRM proposes to find that the scope of the Commission's hearing aid compatibility rules should be extended so as to cover all customer equipment used to provide wireless communications among members of the public or a substantial portion of the public via a built-in speaker where the equipment is typically held to the ear, so long as meeting hearing aid compatibility standards is technologically feasible and would not raise costs to an extent that would preclude successful marketing of the equipment. The FNPRM seeks comment on: (1) Whether considerations of technological feasibility or marketability prevent application of the hearing aid compatibility requirements, or require modification of those requirements, as to any class of handsets; and (2) what transition period is appropriate for applying the requirements to newly covered handsets. This proposed rule change would ensure that people with hearing loss will have access to new and advanced handsets regardless of the frequency over which they operate or the voice technology mode deployed, while maintaining consistency with the technological feasibility and marketability criteria set forth in the Hearing Aid Compatibility Act.5

29. The FNPRM also seeks comment on whether the current requirement to make hearing aid-compatible handsets available in-store for consumer testing should be extended to some or all retail outlets other than those owned or operated by service providers. The Commission seeks comment on how to define the class of independent retailers that would be required to make hearing aid-compatible handsets available for in-store testing. This rule change would ensure that consumers have the information they need to choose a handset that will operate correctly with their hearing aid or cochlear implant.

30. Additionally, the FNPRM seeks comment on whether the Commission should treat handsets that allow consumers to reduce the maximum transmit power only for operations over the GSM air interface in the 1900 MHz band by up to 2.5 decibels, except for calls to 911, and that meet the criteria for an M3 rating after such power reduction, as hearing aid-compatible for all purposes. This rule change would help ensure the near-term availability of desirable handsets over the legacy GSM air interface while still affording substantial access to people with hearing loss. The Commission also proposes, for all such handsets, that the manufacturer or service provider would have to disclose that activation of a special mode is required to meet the hearing aid compatibility standard, how to activate the special mode, and the possibility of a loss of coverage if the special mode is activated. This rule change would ensure that consumers have the information they need to choose and operate a handset that will best function with their hearing aid or cochlear implant.

31. The potential actions about which comment is sought in this FNPRM would be authorized pursuant to the authority contained in Sections 4(i), 303(r), and 710 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 610.

32. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by proposed rules.6 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”7 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.8 A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”).9 To assist the Commission in analyzing the total number of potentially affected small entities, the Commission requests commenters to estimate the number of small entities that may be affected by any rule changes that might result from this FNPRM.

33.Small Businesses.Nationwide, there are a total of approximately 29.6 million small businesses, according to the SBA.10

34.Cellular Licensees.The SBA has developed a small business size standard for small businesses in thecategory “Wireless Telecommunications Carriers (except satellite).”11 Under that SBA category, a business is small if it has 1,500 or fewer employees.12 The census category of “Cellular and Other Wireless Telecommunications” is no longer used and has been superseded by the larger category “Wireless Telecommunications Carriers (except satellite)”. However, since currently available data was gathered when “Cellular and Other Wireless Telecommunications” was the relevant category, earlier Census Bureau data collected under the category of “Cellular and Other Wireless Telecommunications” will be used here. Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year.13 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more.14 Thus, under this category and size standard, the majority of firms can be considered small.

35.Broadband Personal Communications Service.The broadband Personal Communications Service (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission has created a small business size standard for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years.15 For Block F, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years.16 These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA.17 No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the C Block auctions. A total of 93 “small” and “very small” business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F.18 On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders.19

36. On January 26, 2001, the Commission completed the auction of 422 C and F Block PCS licenses in Auction 35.20 Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. In 2005, the Commission completed an auction of 188 C block licenses and 21 F block licenses in Auction 58. There were 24 winning bidders for 217 licenses.21 Of the 24 winning bidders, 16 claimed small business status and won 156 licenses. In 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction 71.22 Of the 14 winning bidders, six were designated entities.23 In 2008, the Commission completed an auction of 20 Broadband PCS licenses in the C, D, E and F Block licenses in Auction 78.24

37.Specialized Mobile Radio.The Commission awards “small entity” bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years.25 The Commission awards “very small entity” bidding credits to firms that had revenues of no more than $3 million in each of the three previous calendar years.26 The SBA has approved these small business size standards for the 900 MHz Service.27 The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5, 1995, and closed on April 15, 1996. Sixty bidders claiming that they qualified as small businesses under the $15 million size standard won 263 geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper 200 channels began on October 28, 1997, and was completed on December 8, 1997. Ten bidders claiming that they qualified as small businesses under the $15 million size standard won 38 geographic area licenses for the upper 200 channels in the 800 MHz SMR band.28 A second auction for the 800 MHz band was held on January 10, 2002 and closed on January 17, 2002 and included 23 licenses. One bidder claiming small business status won five licenses.29

38. The auction of the 1,053 800 MHz SMR geographic area licenses for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders that won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. In an auction completed on December 5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were sold. Of the 22 winning bidders, 19 claimed “small business” status and won 129 licenses. Thus, combining all three auctions, 40 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small business.

39. In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extendedimplementation authorizations in the 800 and 900 MHz bands. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR services pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. In addition, the Commission does not know how many of these firms have 1,500 or fewer employees. The Commission assumes, for purposes of this analysis, that all of the remaining existing extended implementation authorizations are held by small entities.

40.Advanced Wireless Services.In 2008, the Commission conducted the auction of Advanced Wireless Services (“AWS”) licenses.30 This auction, which was designated as Auction 78, offered 35 licenses in the AWS 1710-1755 MHz and 2110-2155 MHz bands (“AWS-1”). The AWS-1 licenses were licenses for which there were no winning bids in Auction 66. That same year, the Commission completed Auction 78. A bidder with attributed average annual gross revenues that exceeded $15 million and did not exceed $40 million for the preceding three years (“small business”) received a 15 percent discount on its winning bid. A bidder with attributed average annual gross revenues that did not exceed $15 million for the preceding three years (“very small business”) received a 25 percent discount on its winning bid. A bidder that had a combined total assets of less than $500 million and combined gross revenues of less than $125 million in each of the last two years qualified for entrepreneur status.31 Four winning bidders that identified themselves as very small businesses won 17 licenses.32 Three of the winning bidders that identified themselves as small business won five licenses. Additionally, one other winning bidder that qualified for entrepreneur status won 2 licenses.

41.Rural Radiotelephone Service.The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service.33 A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (“BETRS”).34 In the present context, the Commission will use the SBA small business size standard applicable to Wireless Telecommunication Carriers (except satellite),i.e., an entity employing no more than 1,500 persons.35 There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies adopted herein.

42.Wireless Communications Services.This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses in the 2305-2320 MHz and 2345-2360 MHz bands. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million or less for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million or less for each of the three preceding years.36 The SBA has approved these definitions.37 The Commission auctioned geographic area licenses in the WCS service. In the auction, which commenced on April 15, 1997, and closed on April 25, 1997, there were seven bidders that won 31 licenses that qualified as very small business entities, and one bidder that won one license that qualified as a small business entity.

43.700 MHz Guard Bands Licenses.In the700 MHz Guard Bands Order, the Commission adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments.38 A small business in this service is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years.39 Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years.40 SBA approval of these definitions is not required.41 An auction of 52 Major Economic Area (MEA) licenses for each of two spectrum blocks commenced on September 6, 2000, and closed on September 21, 2000.42 Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of remaining 700 MHz Guard Bands licenses commenced on February 13, 2001, and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses.43 Subsequently, in the700 MHz Second Report and Order,the Commission reorganized the licenses pursuant to an agreement among most of the licensees, resulting in a spectral relocation of the first set of paired spectrum block licenses, and an elimination of the second set of paired spectrum block licenses (many of which were already vacant, reclaimed by the Commission from Nextel).44 A single licensee that did not participate in the agreement was grandfathered in the initial spectral location for its two licenses in the second set of paired spectrum blocks.45 Accordingly, at this time there are 54 licenses in the 700 MHz Guard Bands.

44.700 MHz Band Commercial Licenses.There is 80 megahertz of non-Guard Band spectrum in the 700 MHz Band that is designated for commercial use: 698-757, 758-763, 776-787, and 788-793 MHz Bands. With one exception, the Commission adopted criteria for defining two groups of small businesses for purposes of determining their eligibility for bidding credits at auction. These two categories are: (1) “Small business,” which is defined as an entity with attributed average annualgross revenues that exceed $15 million and do not exceed $40 million for the preceding three years; and (2) “very small business,” which is defined as an entity with attributed average annual gross revenues that do not exceed $15 million for the preceding three years.46 In Block C of the Lower 700 MHz Band (710-716 MHz and 740-746 MHz), which was licensed on the basis of 734 Cellular Market Areas, the Commission adopted a third criterion for determining eligibility for bidding credits: an “entrepreneur,” which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years.47 The SBA has approved these small size standards.48

45. An auction of 740 licenses for Blocks C (710-716 MHz and 740-746 MHz) and D (716-722 MHz) of the Lower 700 MHz Band commenced on August 27, 2002, and closed on September 18, 2002. Of the 740 licenses available for auction, 484 licenses were sold to 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business, or entrepreneur status and won a total of 329 licenses.49 A second auction commenced on May 28, 2003, and closed on June 13, 2003, and included 256 licenses: Five EAG licenses and 251 CMA licenses.50 Seventeen winning bidders claimed small or very small business status and won 60 licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses.51

46. The remaining 62 megahertz of commercial spectrum was auctioned on January 24 through March 18, 2008. As explained above, bidding credits for all of these licenses were available to “small businesses” and “very small businesses.” Auction 73 concluded with 1090 provisionally winning bids covering 1091 licenses and totaling $19,592,420,000. The provisionally winning bids for the A, B, C, and E Block licenses exceeded the aggregate reserve prices for those blocks. The provisionally winning bid for the D Block license, however, did not meet the applicable reserve price and thus did not become a winning bid. Approximately 55 small businesses had winning bids.52 Currently, the 10 remaining megahertz associated with the D block have not yet been assigned.53

47.Offshore Radiotelephone Service.This service operates on several UHF television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico.54 There is presently one licensee in this service. The Commission does not have information whether that licensee would qualify as small under the SBA's small business size standard for Wireless Telecommunications Carriers (except Satellite) services.55 Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees.56

48.Broadband Radio Service and Educational Broadband Service.The Broadband Radio Service (“BRS”), formerly known as the Multipoint Distribution Service (“MDS”),57 and the Educational Broadband Service (“EBS”), formerly known as the Instructional Television Fixed Service (“ITFS”),58 use 2 GHz band frequencies to transmit video programming and provide broadband services to residential subscribers.59 These services, collectively referred to as “wireless cable,” were originally designed for the delivery of multichannel video programming, similar to that of traditional cable systems, but over the past several years licensees have focused their operations instead on providing two-way high-speed Internet access services.60 The Commission estimates that the number of wireless cable subscribers is approximately 100,000, as of March 2005. The SBA small business size standard for the broad census category of Cable and Other Program Distribution, which consists of such entities generating $13.5 million or less in annual receipts, appears applicable to MDS and ITFS.61 Note that the census category of “Cable and Other Program Distribution” is no longer used and has been superseded by the larger category “Wireless Telecommunications Carriers (except satellite). This category provides that a small business is a wireless company employing no more than 1,500 persons.62 However, since currently available data was gathered when “Cable and Other Program Distribution” was the relevant category, earlier Census Bureau data collected under the category of “Cable and Other Program Distribution” will be used here. Other standards also apply, as described.

49. The Commission has defined small MDS (now BRS) entities in the context of Commission license auctions. In the 1996 MDS auction,63 the Commission defined a small business as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years.64 This definition of a small entity in the context of MDS auctions has been approved by the SBA.65 In the MDS auction, 67 bidders won 493 licenses. Of the 67 auction winners, 61 claimed status as a small business. At this time, the Commission estimates that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are hundreds of MDS licensees and wireless cable operators that did not receive their licenses as a result of the MDS auctionand that fall under the former SBA small business size standard for Cable and Other Program Distribution.66 Information available to us indicates that there are approximately 850 of these licensees and operators that do not generate revenue in excess of $13.5 million annually. Therefore, the Commission estimates that there are approximately 850 of these small entity MDS (or BRS) providers, as defined by the SBA and the Commission's auction rules.

50. Educational institutions are included in this analysis as small entities; however, the Commission has not created a specific small business size standard for ITFS (now EBS).67 The Commission estimates that there are currently 2,452 EBS licenses, held by 1,524 EBS licensees, and all but 100 of the licenses are held by educational institutions. Thus, the Commission estimates that at least 1,424 EBS licensees are small entities.

51.Government Transfer Bands.The Commission adopted small business size standards for the unpaired 1390-1392 MHz, 1670-1675 MHz, and the paired 1392-1395 MHz and 1432-1435 MHz bands.68 Specifically, with respect to these bands, the Commission defined an entity with average annual gross revenues for the three preceding years not exceeding $40 million as a “small business,” and an entity with average annual gross revenues for the three preceding years not exceeding $15 million as a “very small business.”69 SBA has approved these small business size standards for the aforementioned bands.70 Correspondingly, the Commission adopted a bidding credit of 15 percent for “small businesses” and a bidding credit of 25 percent for “very small businesses.”71 This bidding credit structure was found to have been consistent with the Commission's schedule of bidding credits, which may be found at Section 1.2110(f)(2) of the Commission's rules.72 The Commission found that these two definitions will provide a variety of businesses seeking to provide a variety of services with opportunities to participate in the auction of licenses for this spectrum and will afford such licensees, who may have varying capital costs, substantial flexibility for the provision of services.73 The Commission noted that it had long recognized that bidding preferences for qualifying bidders provide such bidders with an opportunity to compete successfully against large, well-financed entities.74 The Commission also noted that it had found that the use of tiered or graduated small business definitions is useful in furthering its mandate under Section 309(j) to promote opportunities for and disseminate licenses to a wide variety of applicants.75 An auction for one license in the 1670-1674 MHz band commenced on April 30, 2003 and closed the same day. One license was awarded. The winning bidder was not a small entity.

52.Mobile Satellite Service Carriers.Neither the Commission nor the U.S. Small Business Administration has developed a small business size standard specifically for mobile satellite service licensees. The appropriate size standard is therefore the SBA standard for Satellite Telecommunications. The category of Satellite Telecommunications “comprises establishments primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.”76 The category has a small business size standard of $15 million or less in average annual receipts, under SBA rules.77 For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year.78 Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999.79 Consequently, the Commission estimates that the majority of Satellite Telecommunications firms are small entities that might be affected by its action.

53.Internet Service Providers.In the Notice, the Commission seeks comment on whether to extend hearing aid compatibility requirements to entities offering access to Voice over Internet Protocol (VoIP) applications over Wi-Fi80 and other wireless technologies that may fall outside the definition of CMRS and/or the criteria in Section 20.19(a), such as those operating on networks that do not employ “an in-network switching facility that enablesthe provider to reuse frequencies and accomplish seamless hand-offs.” Such applications may be provided, for example, by Internet Service Providers (ISPs). ISPs are Internet Publishing and Broadcasting and Web Search Portals81 that provide clients access to the Internet and generally provide related services such as web hosting, web page designing, and hardware or software consulting related to Internet connectivity. To gauge small business prevalence for these Internet Publishing and Broadcasting and Web Search Portals, the Commission must, however, use current census data that are based on the previous category of Internet Service Providers and its associated size standard. That standard was: All such firms having $23.5 million or less in annual receipts. Accordingly, to use data available to us under the old standard and Census Bureau data for 2002, there were 2,529 firms in this category that operated for the entire year.82 Of these, 2,437 firms had annual receipts of under $10 million, and an additional 47 firms had receipts of between $10 million and $24,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by its action.

54.All Other Information Services.“This industry comprises establishments primarily engaged in providing other information services (except new syndicates and libraries and archives).”83 VoIP services over wireless technologies could be provided by entities that provide other services such as email, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services. The SBA has developed a small business size standard for this category; that size standard is $6.5 million or less in average annual receipts.84 According to Census Bureau data for 1997, there were 195 firms in this category that operated for the entire year.85 Of these, 172 had annual receipts of under $5 million, and an additional nine firms had receipts of between $5 million and $9,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by its action.

55.Part 15 Handset Manufacturers. Manufacturers of unlicensed wireless handsets may also become subject to requirements in this proceeding for their handsets used to provide VoIP applications. The Commission has not developed a definition of small entities applicable to unlicensed communications handset manufacturers. Therefore, the Commission will utilize the SBA definition applicable to Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.”86 The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: All such firms having 750 or fewer employees.87 According to Census Bureau data for 2002, there were a total of 1,041 establishments in this category that operated for the entire year.88 Of this total, 1,010 had employment of less than 500, and an additional 13 had employment of 500 to 999.89 Thus, under this size standard, the majority of firms can be considered small.

56.Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for firms in this category, which is: All such firms having 750 or fewer employees.90 According to Census Bureau data for 2002, there were a total of 1,041 establishments in this category that operated for the entire year. Of this total, 1,010 had employment of less than 500, and an additional 13 had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small.

57.Radio, Television, and Other Electronics Stores. The Census Bureau defines this economic census category as follows: “This U.S. industry comprises: (1) Establishments known as consumer electronics stores primarily engaged in retailing a general line of new consumer-type electronic products; (2) establishments specializing in retailing a single line of consumer-type electronic products (except computers); or (3) establishments primarily engaged in retailing these new electronic products in combination with repair services.”91 The SBA has developed a small business size standard for Radio, Television, and Other Electronics Stores, which is: All such firms having $9 million or less in annual receipts.92 According to Census Bureau data for 2002, there were 10,380 firms in this category that operated for the entireyear.93 Of this total, 10,080 firms had annual sales of under $5 million, and 177 firms had sales of $5 million or more but less than $10 million.94 Thus, the majority of firms in this category can be considered small.

58. The Commission proposes to extend broadly to providers of wireless communications among members of the public or a substantial portion of the public using equipment that contains a built-in speaker and is typically held to the ear, and to the manufacturers of such equipment, the same hearing aid compatibility rules that currently apply to a defined category of commercial mobile radio service (CMRS). These regulations include: (1) Requirements to deploy a certain number or percentage of handset models that meet hearing aid compatibility standards, (2) “refresh” requirements on manufacturers to meet their hearing aid-compatible handset deployment benchmarks in part using new models, (3) a requirement that service providers offer hearing aid-compatible handsets with varying levels of functionality, (4) a requirement that service providers make their hearing aid-compatible models available to consumers for testing at their owned or operated stores, (5) point of sale disclosure requirements, (6) requirements to make consumer information available on the manufacturer's or service provider's Web site, and (7) annual reporting requirements. There is ade minimisexception from all of the requirements except reporting for small entities, and for all entities during their first two years of offering handsets, that offer two or fewer handset models over an air interface. The Commission seeks comment on whether there are any classes of handsets for which either it is technically infeasible to meet the hearing aid compatibility requirements or satisfying those requirements would increase costs to the point where the handsets could not be successfully marketed. The Commission also seeks comment on the appropriate transition period for applying hearing aid compatibility requirements to telephones that are outside the currently covered subset of CMRS.

59. The Commission's rules require that wireless service providers make their hearing aid-compatible handset models available for consumer testing in each retail store that they own or operate. The Commission seeks comment on whether it should extend the in-store testing requirement to some or all entities that sell handsets to consumers through physical locations. In addition, the Commission seeks comment about whether it should adopt a rule providing that a return policy allowing a customer with hearing loss to return a handset without penalty would qualify as an alternative means of satisfying the in-store testing requirement.

60. Under the Commission's rules, handsets must be tested for hearing aid compatibility at their maximum output power. The Commission seeks comment on whether it should treat as hearing aid-compatible for all purposes handsets that allow consumers to reduce the maximum transmit power only for operations over the GSM air interface in the 1900 MHz band by up to 2.5 decibels and that meet the criteria for an M3 rating after such power reduction. The Commission proposes that if it were to extend the ability to meet hearing aid compatibility standards in this manner, it should require the handset to operate at full power when calling 911, the manufacturer or service provider would have to disclose that activation of a special mode is required to meet the hearing aid compatibility standard, and the device manual or product insert would have to explain how to activate the special mode and the possibility of a loss of coverage. The Commission seeks comment on these and any other possible conditions on this rule change.

61. The RFA requires an agency to describe any significant, specifically small business alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) exemption from coverage of the rule, or any part thereof, for small entities.”95

62. The Commission seeks comment generally on the effect the rule changes considered in this FNPRM would have on small entities, on whether alternative rules should be adopted for small entities in particular, and on what effect such alternative rules would have on those entities. The Commission invites comment on ways in which it can achieve its goals while minimizing the burden on small wireless service providers, equipment manufacturers, and other entities.

63. More specifically, the Commission seeks comment on whether there are any classes of handsets that provide wireless communications among members of the public or a substantial portion of the public via a built-in speaker where the equipment is typically held to the ear for which either it is technologically infeasible to meet hearing aid compatibility requirements or satisfying those requirements would increase costs to the point where the handsets could not be successfully marketed. The Commission seeks comment on whether, for reasons of technological infeasibility or prohibitive costs, the specific numerical benchmarks set forth in the Commission's rules or other rule provisions cannot be applied to any class of handsets. The Commission seeks specific evidence as to why particular requirements cannot be met and what alternative requirements would be feasible and appropriate. The Commission also asks commenters to suggest alternatives that may further reduce possible burdens on small entities regarding meeting the hearing aid compatibility requirements.

64. The Commission recognizes that it takes time for handsets with new specifications to be designed, produced, and brought to market. The Commission therefore seeks comment on the appropriate transition period for applying hearing aid compatibility requirements to telephones that are outside the subset of CMRS that is currently covered by Section 20.19(a). In recognition that smaller service providers may encounter delays in obtaining new model handsets from manufacturers and vendors, the Commission specifically asks whether smaller service providers should have a longer transition period than Tier I carriers. The Commission also asks commenters to suggest other alternative transition periods that could further lessen the burden on small businesses.

65. The Commission also seeks comment as to whether the Commission should extend the in-store testing requirement to some or all entities other than those owned or operated by service providers that sell handsets to consumers through physical locations. The Commission further seeks comment, if it decides to extend this requirement to some but not all retail outlets, on how the scope of the requirement should be defined. Among other things, the Commission asks whether the size of an entity should be a factor in this definition. The Commission's goal is to arrive at a definition that is clear and easy to apply, and at the same time closely identifies those retailers for which the benefits of the rule outweigh the burdens while reducing the burden on small entities. The Commission also seeks comment on alternatives to extending the in-store testing requirement, including whether a return policy allowing a customer with hearing loss to return a handset without penalty should qualify as an alternative means of satisfying the requirement. The Commission asks commenters to suggest alternatives that may further reduce the impact on small entities.

66. Additionally, the FNPRM seeks comment on whether the Commission should treat handsets that allow consumers to reduce the maximum transmit power only for operations over the GSM air interface in the 1900 MHz band by up to 2.5 decibels and that meet criteria for an M3 rating after such power reduction as hearing aid-compatible for all purposes. This rule change would ease the burden on small entities by making it easier to satisfy hearing aid compatibility requirements for this class of handsets.

67. Finally, if the Commission were to extend the ability to meet hearing aid compatibility standards by allowing the user to reduce the maximum power for GSM operations in the 1900 MHz band, it proposes to do so subject to the same conditions that it has imposed in the context of thede minimisrule. Thus, the handset would have to operate at full power when calling 911, the manufacturer or service provider would have to disclose that activation of a special mode is required to meet the hearing aid compatibility standard, and the device manual or product insert would have to explain how to activate the special mode and the possibility of a loss of coverage. This rule change would ensure that consumers have the information they need to choose and operate a handset that will best function with their hearing aid or cochlear implant. The Commission seeks to receive alternative proposals that would achieve this goal while further reducing the burdens on small business.

68. For each of the proposals in the FNPRM, the Commission seeks discussion, and where relevant, alternative proposals, on the effect that each prospective new requirement, or alternative rules, might have on small entities. For each proposed rule or alternative, the Commission seeks discussion about the burden that the prospective regulation would impose on small entities and how the Commission could impose such regulations while minimizing the burdens on small entities. For each proposed rule, the Commission asks whether there are any alternatives the Commission could implement that could achieve the Commission's goals while at the same time minimizing the burdens on small entities. For the duration of this docketed proceeding, the Commission will continue to examine alternatives with the objectives of eliminating unnecessary regulations and minimizing any significant economic impact on small entities.

69. None.

70. The FNPRM does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,see44 U.S.C. 3506(c)(4).

71. The rulemaking shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission'sex parterules. Persons making oralex partepresentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented generally is required. Other requirements pertaining to oral and written presentations are set forth in Section 1.1206(b) of the Commission's rules.

72. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before October 25, 2010, and reply comments on or before November 22, 2010. All filings related to this Further Notice of Proposed Rulemaking should refer to WT Docket No. 07-250. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.See Electronic Filing of Documents in Rulemaking Proceedings,63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS:http://www.fcc.gov/cgb/ecfs/or the Federal eRulemaking Portal:http://www.regulations.gov.Filers should follow the instructions provided on the Web site for submitting comments.

• ECFS filers must transmit one electronic copy of the comments for WT Docket No. 07-250. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail toecfs@fcc.gov, and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.

• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street, SW., Room TW-A325, Washington, DC 20554. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.

73. Parties should send a copy of their filings to John Borkowski, Federal Communications Commission, Room 6404, 445 12th Street, SW., Washington, DC 20554, or by e-mail toJohn.Borkowski@fcc.gov.Parties shall also serve one copy with the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via e-mail tofcc@bcpiweb.com.

74. Documents in WT Docket No. 07-250 will be available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The documents may also be purchased from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, e-mailfcc@bcpiweb.com.

75. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail tofcc504@fcc.govor call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice) or 202-418-0432 (TTY).

76. Accordingly,It is orderedthat, pursuant to the authority of sections 4(i), 303(r), and 710 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 610, this Further Notice of Proposed Rulemaking is hereby adopted.

77.It is further orderedthat pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the Commission's Rules, 47 CFR 1.415, 1.419, interested parties may file comments on this Further Notice of Proposed Rulemaking on or before October 25, 2010, and reply comments on or before November 22, 2010.

78.It is further orderedthat the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of this FNPRM, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 20 as follows:

This case was initiated after an agency identified an inconsistency in the use of the SF 26 by contracting officers. Although block 18 of the form is intended for use only with sealed-bid procurements, contracting officers have used block 18 with negotiated procurements, which has had unintended negative consequences in certain contract disputes.

FAR 53.214(a) prescribes the SF 26 for use in contracting for supplies and services by sealed bidding (except for construction and architect-engineer services). The SF 26 is used to award sealed-bid contracts after obtaining bids using a SF 33, Solicitation, Offer, and Award. FAR 14.408-1(d)(1) specifies that, if an offer made using a SF 33 leads to further changes, the resulting contract must be prepared as a bilateral document using the SF 26.

This case is based on instances where contracting officers have mistakenly checked block 18 when awarding negotiated, not sealed bid, contracts. Such use has created the potential for disputes in situations where the Government's intent was not to accept the terms of the offer in its entirety, as the current wording of block 18 may imply.

The Councils believe that revising the header for blocks 17 and 18 and block 18 of the form will eliminate the issue. In addition to the recent enhancements to the instructions for use of the form, at FAR 53.214 and 53.215-1, the Councils propose to add “sealed bid” to the title of block 18, change “offer” to “bid” each time it occurs in block 18, and add a new sentence at the end of the block stating that block 18 should only be checked when awarding a sealed-bid contract.

These changes will not prohibit the use of the SF 26 for awarding negotiated procurements; it will only prohibit the use of block 18 of the SF 26 when awarding negotiated procurements.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6 of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The Councils do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,et seq., because the rule does not impose any additional requirements on small businesses, but rather clarifies an area open to confusion. Therefore, an Initial Regulatory Flexibility Analysis has not been performed. The Councils will consider comments from small entities concerning the affected FAR part 53 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601,et seq.(FAR Case 2009-029), in all correspondence. The Councils will also consider comments from small entities concerning the existing regulations in parts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2009-029), in all correspondence.

The Paperwork Reduction Act does not apply because the proposed changes to the FAR do not impose information collection requirements that require the approval of the Office of Managementand Budget under 44 U.S.C. chapter 35,et seq.

Therefore, DoD, GSA, and NASA propose amending 48 CFR part 53 as set forth below:

1. The authority citation for 48 CFR part 53 continues to read as follows:

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we request comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule to list the Ozark hellbender as endangered. We particularly seek comments concerning:

(1) Population survey results for the Ozark hellbender, as well as any studies that may show distribution, status, population size, or population trends, including indications of recruitment.

(2) Pertinent aspects of life history, ecology, and habitat use of the Ozark hellbender.

(3) Current and foreseeable threats faced by the Ozark hellbender in relation to the five factors (as defined in section 4(a)(1) of the Act (16 U.S.C. 1531et seq.)):

(a) The present or threatened destruction, modification, or curtailment of the species' 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 and threats to the species or its habitat.

(4) Our determination of “not prudent” for critical habitat.

(5) Whether there is a need for us to consider developing a “similarity of appearance” listing for the eastern hellbender. Section 4(e) of the Act (similarity of appearance cases) allows the Secretary to treat any species as an endangered or threatened species under the Act if he finds that: (A) It (in this case, the eastern hellbender) closely resembles a listed species (in this case, the Ozark hellbender) and enforcement personnel would have substantial difficulty differentiating between the listed and unlisted species; (B) the effect of this difficulty is an additional threat to the listed species: and (C) such treatment of the unlisted species would substantially facilitate enforcement of the Act for Ozark hellbender.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in theADDRESSESsection. We will not accept comments sent by e-mail or fax or to an address not listed in theADDRESSESsection.

We will post your entire comment—including your personal identifying information—onhttp://www.regulations.gov. If you provide personal identifying information in addition to the required items specified in the previous paragraph, such as your street address, phone number, or e-mail address, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection onhttp://www.regulations.gov, or by appointment, during normal business hours at the Columbia Missouri Ecological Services Field Office (seeFOR FURTHER INFORMATION CONTACTsection).

The Ozark hellbender is a large, strictly aquatic salamander endemic to streams of the Ozark plateau in southern Missouri and northern Arkansas. Itsdorso-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; Petersonet 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 asCryptobranchus bishopiby Grobman (1943, pp. 6-9) from a specimen collected from the Current River in Carter County, Missouri. Due to the small amount of genetic variation in the genusCryptobranchus(Merkleet al.1977, pp. 550-552; Shaffer and Breden 1989, pp. 1017-1022), Dundee and Dundee (1965, p. 370) referred to the Ozark hellbender as a subspecies of the eastern hellbender,C. alleganiensis. This designation persisted until Collins (1991, pp. 42-43) revivedC. bishopi, due to the lack of intergradation between the eastern and Ozark hellbenders because of the allopatry (occurring in separate, nonoverlapping geographic areas) of the populations (Dundee 1971, p. 101.1). Although Ozark hellbenders have been shown to be phenotypically and genetically distinct from eastern hellbenders (Grobman 1943, pp. 6-9; Dundee and Dundee 1965, p. 370; Dundee 1971, p. 101.1; Routman 1993, pp. 410-415; Kucuktaset al.2001, p. 127), we will continue to useC. a. bishopi, which is the name currently recognized by the Committee on Standard English and Scientific Names (Crotheret 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. 1531et seq.). Careful review of the Ozark hellbender's taxonomic information confirms it is a valid subspecies.

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 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, p. 92 and p. 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 (Williamset 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 (Williamset 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 11.6 °C (52.9 °F), 17.7 °C (63.9 °F), and 21.7 °C (71.1 °F) for individuals acclimatized to temperatures of 5 °C (41 °F), 15 °C (59 °F), and 25 °C (77 °F), respectively. Hutchisonet 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 32.7 °C (90.9 °F) at 5 °C (41 °F) acclimation, 32.9 °C (91.2 °F) at 15 °C (59 °F), and 36.5 °C (97.7 °F) at 25 °C (77° F).

Typically, Ozark hellbender populations are dominated by older, large adults (Nickerson and Mays 1973a, p. 1; Petersonet al.1983, pp. 227-231; LaClaire 1993, p. 2). Hellbenders are long-lived, capable of living 25 to 30 years in the wild (Petersonet 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 approximately 6 to 8 years (Nickerson and Mayes 1973a, p. 54; Petersonet al.1983, p. 229; Taberet al.1975, p. 638). Male hellbenders have been reported to reach sexual maturity at a total length of 11.8 in (30 cm), or approximately 5 years (Taberet 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, p. 42 and p. 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). Hatchlings and larvae are rarely collected during surveys due to low detectability. Larvae and small individuals hide beneath small stones in gravel beds (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, Pfingsten 1990 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, hellbenders are considered extirpated in the mainstem White, Black, and Spring Rivers and Jacks Fork, and their range has been considerably reduced in the remaining rivers and tributaries.

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 (Wheeleret al.2003, pp. 153 and 155), and no populations appear to be stable. Declines have been evident throughout the range of the eastern hellbender as well, which receives protective status in many eastern States.

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 the Ozark and eastern hellbender in August 2006. Thirty workshop participants explored threats to hellbender populations and develop 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 (Briggleret al.2007, p. 8 and pp. 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 (Briggleret al.2007, pp. 83-84)).

White River - There are only two hellbender records from the main stem of the White River. In 1997, a hellbender was recorded in Baxter County, Arkansas (Irwin 2008, 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 2008, 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 potential hellbender habitat (we do not know whether this habitat was historically occupied) 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 hellbender population. In 1973, results of a mark-recapture study indicated approximately 1,150 hellbenders within a 1.7-mile (mi) (2.7-kilometer (km)) reach of the North Fork in Ozark County, Missouri, with a 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 densities between one per 19.7 sq ft (6 sq m) and one per 52.5 sq ft (16 sq m; Petersonet 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 were sized 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 size 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 censused in 1983 (Petersonet al.1983, pp. 225-231) and using the same collection methods, only 50 hellbenders were captured (Wheeleret al.1999, p. 18). These individuals ranged in length from 7.9 to 20.0 in (200 to 507 mm), with most between 15.7 and 19.7 in (400 and 500 mm), and were on average significantly longer than 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. To compare results between these qualitative and quantitative studies, Wheeleret al.(1999, p. 4) converted historical hellbender collections (Petersonet al.1983, pp. 225-231) to numbers of individuals caught per day. In addition, the other studies that were not included in that conversion (Petersonet al.1988, pp. 291-303; Ziehmer and Johnson 1992, pp. 1-5) have been converted here. For comparison purposes, one search day is defined as 8 hours of searching by 3 people (24 person-hours). The use of “search day” may be an underestimate of actual effort, and this conservative estimate of effort will likely result in a modest estimate of hellbender population declines. Therefore, in 1983, approximately 51 hellbenders were caught per search day (Petersonet al.1983, pp. 225-231). In 1992, 60 hellbenders per day were caught (Ziehmer and Johnson 1992, p. 2), and, in 1998, 16 hellbenders per day were caught (Wheeler 1999, p. 12).

The North Fork had been considered the stronghold of the species in Missouri, and the populations inhabiting this river had been deemed stable (Ziehmer and Johnson 1992, p. 3; LaClaire 1993, pp. 3-4). However, these populations now appear to be experiencing declines similar to those in other streams. The collection of young individuals has become rare, indicating little recruitment. Although Briggler (2008a, pers. comm.) did find some younger hellbenders in this river during his 2005 surveys, he has not found any larvae despite extensive effort. In species such as the hellbender, which are long lived and mature at a relatively late age, detecting declines related to recruitment can take many years, as recruitment under healthy population conditions is typically low (Nickerson and Mays 1973a, p. 54). In 2006, hellbender experts (researchers and State herpetologists) estimated the current population in the North Fork to be 200 individuals (Briggleret al.2007, p. 83). In surveys conducted between 1969 and 1979, researchers caught from 8 to 12 hellbenders per hour (Nickerson and Briggler 2007, p. 213). For comparison, surveys of the same 15.5-mi (25-km) section of the North Fork in 2005 and 2006 averaged 0.5 hellbenders per hour (Nickerson and Briggler 2007, p. 213). Therefore, a dramatic decline is apparent 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 hellbenders in this stream during an initial survey, but none were captured or observed after 22 person-hours. This apparent lack of the species conflicted with 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 (Wheeleret al.1999, p. 7), confirming the existence of a population in this tributary. This population, however, is isolated from the other North Fork White River populations by Norfork Reservoir, which could contribute to this population's apparent small size. 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 not surveyed in 1998. This population has been historically low and is not considered viable (Briggler 2008b, pers. comm.).

Black River - There is one documented record of a hellbender in the Black River above its confluence with the Strawberry River on the Independence-Jackson County line (Arkansas) in 1978 (Irwin 2008, pers. comm.). Portions of the Black River in Missouri were surveyed in 1999 by researchers at Arkansas State University, but no hellbenders were observed (Wheeleret al.1999, p. 18). Currently, the Black River does not appear to have conditions suitable for hellbenders, although it may have been occupied before intensive agricultural practices were begun in the area (Irwin 2008, pers. comm.). The Black River is presumed to be part of the historical range of the subspecies, because hellbenders have been documented in several of its tributaries, including the Spring, Current, and Eleven Point Rivers (Firschein 1951, p. 456; Trauthet al.1992, p. 83). In 2004, MDC surveyed areas in Missouri that had been searched in 1999 (Wheeleret 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. 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 (Petersonet 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)). 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) (Petersonet al.1988, p. 294). This may indicate that Spring River populations are genetically distinct from other hellbender populations. This speculation was upheld by the conclusions of a genetic study of the Spring, Current, and Eleven Point River populations (Kucuktaset 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 search-hours over a 6-month period (Trauthet al.1992, p. 83). 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 (Petersonet al.1988, pp. 291-303; Trauthet al.1992, p. 83). No size class information is available, although the large sizes of captures reported in Petersonet 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 spring 2004, performing 50 hours of search effort and finding only four Ozark hellbenders. These animals were removed from the river and were housed at the Mammoth Spring National Fish Hatchery but have since died, most likely due to water quality issues at the hatchery. Arkansas State University researchers found four and one individual during 2005 and 2006 surveys, respectively. Hellbenders have declined in this stream and have likely succumbed to the threats of water quality degradation, aquatic vegetation encroachment, and illegal commercial and scientific collection (Irwin 2008, pers. comm.). Although experts estimated the population in the Spring River to be at most 10 individuals, the population in this river is considered extirpated and the possibility of this stream being re-inhabited under present conditions is minimal because of the magnitude of habitat degradation (Briggleret al.2007, p. 83; Irwin 2008, 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. In 1978, 87 hellbenders were captured in Oregon County, Missouri, over a 3-day period, yielding an average of 29 hellbenders per day. From 1980 to 1982, 314 hellbenders were captured in the same area in 9 collection days, yielding an average of 35 hellbenders per day; hellbender body lengths over that period ranged from 4.7 to 17.8 in (119 to 451 mm). In 1988, Petersonet 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). Although the data were not analyzed for captures per day, it can be estimated that approximately 40 hellbenders were caught per day during this study.

In 1998, Wheeler (1999, p. 10) captured 36 hellbenders over 4 days from the same localities as Petersonet al.(1988, p. 292), for an average of nine hellbenders per 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 Petersonet al. (1988, p. 293) localities in 2005 resulted in a total of 31 hellbenders captured, yielding an average of 2.6 hellbenders captured per day (using the search day conversion method presented in the North Fork White River discussion). Population declines and reduced recruitment in the Eleven Point River in Missouri are indicated (through past survey data), although hellbenders are consistently reported during surveys in the Eleven Point River in Arkansas (Irwin 2008, pers. comm.).

Recently in Arkansas (2005 and 2007), however, no more than two or three individuals were caught per day. Specifically, the catch per person-hour in 2005 was 1.1 hellbenders and in 2007 was 0.9 hellbenders for surveys conducted on the Eleven Point River in Arkansas (Irwin 2008, pers. comm.). 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. However, the watershed inArkansas is all privately owned with increased threat from stream bank clearing and unrestricted cattle access, which have an increased effect (through increased siltation and water quality degradation) on remaining populations (Irwin 2008, pers. comm.). In 2006, hellbender experts (researchers and State herpetologists) estimated the current Eleven Point River population to be 200 individuals in Arkansas and 100 individuals in Missouri (Briggleret al.2007, p. 83).

Current River - The Current River had not been surveyed extensively until the 1990s. Nickerson and Mays (1973a, p. 63) reported a large hellbender population in this stream, but no numbers were presented. In 1992, Ziehmer and Johnson (1992, p. 2) found 12 hellbenders in 60 person-hours in Shannon County, Missouri, or approximately 5 hellbenders per day using the same search day conversion as presently used. 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 day), also in Shannon County, Missouri, and the individuals ranged from 14.8 to 20.3 in (375 to 515 mm), 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), indicating this population must have a lack of recruitment. In 2005 and 2006, researchers found a total of 22 hellbenders throughout the Current River in a total of 100 hours spent searching (equivalent to 1.8 hellbenders per day). In 2006, hellbender experts estimated the current population in the Current River to be 80 individuals (Briggleret al.2007, p. 83).

Jacks Fork - Jacks Fork, a tributary of the Current River, was surveyed for hellbenders for the first time in 1992 (Ziehmer and Johnson 1992, p. 2). Four hellbenders were collected over 66 person-hours, equating to roughly 2 hellbenders per day. The individuals were large, ranging from 13.0 to 16.9 in (330 to 430 mm). No hellbenders were found during investigations of Jacks Fork in 2003 and 2006.

We first identified the Ozark hellbender as a candidate species in a notice of review published in theFederal Registeron October 30, 2001 (66 FR 54808). The Ozark hellbender was given a listing priority number of 6 due to non-imminent 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 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 the time. We notified the petitioners by letter of this determination in November 2004. Our finding on that petition was included in a May 11, 2005, notice of review published in theFederal Register(70 FR 24870).

In the May 11, 2005, notice of review we changed the listing priority number (LPN) for the Ozark hellbender from 6 to 3, the highest priority category for a subspecies, 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 Ozark hellbender rivers. Because collection for trade is considered a primary threat, we coordinated with our Division of Management Authority to develop, concurrent with this proposal, a proposal to list the hellbender (both subspecies) in Appendix III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Elsewhere in today'sFederal Register, the Service proposes to list the hellbender, including both subspecies, in Appendix III of CITES.

Section 4 of the Endangered Species Act and regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act set forth the procedures for adding species to the Federal lists. 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) as follows: (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.

In the context of the Act, the term “threatened species” means any species or subspecies or, for vertebrates, Distinct Population Segment (DPS) that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The term “endangered species” means any species, subspecies, or for vertebrates, DPS, that is in danger of extinction throughout all or a significant portion of its range. The Act does not define the term “foreseeable future.”

The application of the five factors to the Ozark hellbender (Cryptobranchus alleganiensis bishopi)is as follows:

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 (Williamset al.1981, p. 99; LaClaire 1993, pp. 4-5). Hellbenders are habitat specialists that depend on consistent levels of dissolved oxygen, temperature, and flow (Williamset al.1981, p. 97). Therefore, even minor alterations to stream habitat are thought 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. 323-324 and pp. 97-98). 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 (Williamset 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 upstream of Batesville, Arkansas, and effectively isolated hellbender populations. Norfork Dam was constructed on the North Fork in 1944 and has isolatedOzark hellbender populations in Bryant Creek and the White River from populations in the North Fork. 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 is typically reduced of oxygen because it is noncirculating or does not “turn over” to the surface. Additionally, the tailwater zones below dams experience extreme water level fluctuations and scouring for many miles downstream. This impacts hellbender populations by washing out the pebbles and cobbles used as cover by juveniles and creating unpredictable habitat conditions outside the Ozark hellbender's normal range of tolerance.

Gravel mining, which has occurred in a number of streams within the historical range of the Ozark hellbender, has directly contributed to Ozark hellbender habitat alteration and loss. 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 levels (Allan and Castillo 2007, p. 331). Reaches downstream of the dredged stream reach often experience aggradation (raised stream bed from build-up of sediment) 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, eggs, prey). In addition, these effects reduce crayfish populations, which are the primary prey species for Ozark hellbenders. Gravel dredging is widespread in the White River systems in southern Missouri and northern Arkansas (LaClaire 1993, p. 4).

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, though at less than historical levels. Results of a U.S. Geological Survey (USGS) water quality study conducted from 1992 to 1995 in the Ozark plateau (Petersonet 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 (Petersonet al.1998, pp. 12-13). Although mining for lead and zinc no longer occurs within the range of the Ozark hellbender, Petersenet al.showed elevated concentrations were still present in the streams where mining occurred historically (1998, p. 12). 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 over 10 years ago in these rivers would remain similar 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 (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 made it to Blue Spring. However, if the current tailings dam on Adair Creek fails, which could be “a real possibility,” large concentrations of lead and zinc would be added to Blue Spring and the Current River (Mosby 2008, pers. comm.).

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-Salem Plateaus of southern Missouri. In comparing ground-water quality of sites within the Ozark Plateaus (including Arkansas and Missouri) with other National Water-Quality Assessment Program (NAWQA) sites, Petersenet al.(1998, pp. 9-10) documented that nitrate concentrations in parts of the Springfield Plateau aquifer were higher than in most other NAWQA drinking-water aquifers, and could possibly affect hellbenders by inhibiting their growth, impairing their immune systems, and overall causing increased stress. Those study areas were within the current distribution of Ozark hellbenders in Arkansas and Missouri.

Nitrogen and phosphorus are essential plant nutrients found naturally in streams. Elevated concentrations of these nutrients, however, cause increased growth of algae and aquatic plants in many streams and are detrimental to aquatic biota (Petersenet al.1998, p. 6). In the Ozark plateau, water 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. A continuing source of sedimentation and contamination is agriculture, which comprises a large percentage of the land use within the range of the Ozark hellbender (Wheeleret 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 NAWQA data collected in the Ozarks in 1993-1995 from wells and springs indicated that nitrate concentrations were strongly associated with the percentage of agricultural land near the wells or springs. Livestock wading in streams, poor agricultural practices that degrade vegetated riparian areas, and faulty septic and sewage treatment systems have resulted in elevated nitrate levels (Petersenet al.1998, pp. 6-8 and 15).

Increased recreational use (such as from canoeing, kayaking, rafting, inner tube floating, and small horsepower motorboating) also impacts the water and habitat quality in rivers inhabited by the Ozark hellbender. In 2003, the Missouri Department of Natural Resources added an 8-mi (13-km) stretch of the Jacks Fork River to the U.S. Environmental Protection Agency Consolidated 2002 Missouri (303(d)) list of impaired waters 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 dueto 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; Banket al.2006, pp. 234-236). Water quality monitoring on both the North Fork White and Eleven Point Rivers in Missouri detected 21 chemicals and elevated levels of estrogen in male hellbenders collected during 2002 and 2003, respectively (Huang 2004, pers. comm.). 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 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 further complicates transport of potential contaminants.

Sediment inputs from land use activities have, and continue to, significantly contribute to habitat degradation. Nickerson and Mays (1973a, pp. 55-56) cite a personal communication from S. Minton in which sediment accumulation is suspected of destroying eggs and juvenile hellbenders. Hellbenders are intolerant of sedimentation and turbidity (Nickerson and Mays 1973a, pp. 55-56), which can impact them in several ways:

(1) Sediment deposition of 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, p. 19 and p. 25).

(3) Suspended sediment loads can cause water temperatures to increase, as there are 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 provides little barrier to these chemicals, which can be toxic (Wheeleret 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).

Improperly designed and maintained roads cause marginally stable slopes to fail, and they also capture surface runoff and channel it directly into streams (Allan and Castillo 2007, pp. 321-322 and 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 2008, pers. comm.). Riparian pasture “retirement” or exclusion of grazing has proven to be an effective means of reducing surface runoff pollutant loads to waterways. Runoff levels of sediment, in addition to phosphorus, particulate- and nitrate-nitrogen concentrations, have been found to be lower at retired riparian pasture than at currently grazed riparian pasture sites (Hoorman and McCutcheon 2005, p. 9).

Habitat disturbance affects hellbender survival in several rivers. Most rivers and streams inhabited by hellbenders are extremely popular with canoeists, kayakers, rafters, inner tube floaters, or low-horsepower motorboat operators. In fact, 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.). Due to the increasing popularity of these float streams, the National Park Service is evaluating options that will reduce the number of boats that can be launched daily by concessionaires (Poe 2004, pers. comm.). Hellbenders encountered with gashes in their heads suggest that watercraft traffic likely impact 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 (Briggleret 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 destroying hellbender habitat. 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; Wheeleret al.1999, p. 4). Rocks are also removed by gardeners for landscaping. Rock turning and flipping is also done by crayfish hunters and hobbyists and independent researchers (Briggleret al.2007, p. 61 and p. 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.

Currently, a number of activities that can and do result in habitat degradation are outside of regulatory oversight. There are no regulatory requirements to implement 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) result in erosion and sedimentation. Additionally, there are no laws or regulations that preclude livestock from grazing in riparian corridors and loafing in streams and rivers.

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 habitat directly, isolate populations, and change water temperatures and flows below reservoirs. 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. We believe these are the primary causes of the population decline. Siltation and water quality degradation are caused by industrialization, agricultural runoff, 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. Increased nitrate levels and fecal coliform, along with a variety of other contaminants from agricultural runoff and increased urbanization, have been detected in hellbender streams, which not only pose a threat directly to hellbenders but also to Ozark aquatic ecosystems in general.

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. 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, hobbyists, and independent researchers 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 indicate that Ozark hellbenders have been collected for commercial and scientific purposes (Trauthet al.1992, p. 85). Although commercial collections are currently illegal in both Missouri and Arkansas, information provided by Nickerson and Briggler (2007, pp. 207-212) indicates that Ozark hellbenders are 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 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 2008, pers. comm.). Missouri imposed a moratorium on hellbender collecting from 1991 to 1996 and has since issued only limited numbers of scientific collecting permits (Horner 2008, pers. comm.). Despite these restrictions, illegal collecting for the pet trade has been documented (Nickerson and Briggler 2007, pp. 208-209) and remains a threat throughout the range Briggler (2008b, 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. Anecdotal information suggests unauthorized collection of animals on the Spring River in Arkansas contributed to the recent population crash, as reaches of the Spring River that formerly contained 35 to 40 have had no individuals present for more than 10 years (Irwin 2008, 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 2008, pers. comm.). Such amphibians as the hellbender (a relatively slow-moving, aquatic species) may be collected with little effort, making them even more susceptible to this threat.

The unauthorized collection of hellbenders, primarily for the pet trade, remains a major concern. In 2001, an advertisement in a Buffalo, New York, newspaper was selling hellbenders for $50 each (Mayasichet 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.). 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, pers. comm. with Okada, 2005). In Japan, the majority of hellbenders are sought for pets rather than for food (Briggler, pers. comm. with Okada, 2005). 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.

Few U.S. species listed under the Act have commercial value in trade; however, the Ozark hellbender does. 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 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 (Gateset 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 and 212). The MDC reports that gigging popularity and pressure have increased, whichincreases a potentially significant 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 suckers (fish mainly in the Catostomidae family) 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 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 and the fast decomposition rate of amphibians), 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 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 hellbender under appropriate State wildlife statutes; and controlling information on the location of hellbenders. The unauthorized collection of Ozark hellbenders for commercial sale in the pet trade, however, continues to be a significant threat.

Background — Chytridiomycosis (also known as chytrid fungus), a highly infectious amphibian disease caused by the pathogenBatrachochytrium dendrobatidis, is recently recognized to have a significant negative effect on the Ozark hellbender.B. dendrobatidishas been demonstrated to infect and kill all life stages of an increasing number of amphibian species worldwide (Bergeret 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 2005, 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 (Daszaket al.1999, pp. 737-738; Boschet al.2001, p. 331; Careyet al.2003, p. 130). It is believed that the amphibian chytrid 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 except Asia, where species are currently being tested (Weldonet al.2004, pp. 2100-2105; Speare and Berger 2005, pp. 1-9).

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

B. dendrobatidislives in aquatic systems in which it ‘swims' (using spores) through the water and reproduces asexually.B. dendrobatidisdevelops 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; Daszaket 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 1 year (for Eleven Point, Current, and North Fork White River) is approximately 59.0 to 60.8 °F (15 to 16 °C; Barr 2008, pers. comm.) .

Persistence of the chytrid fungus may be further enhanced by saprophytic development (obtaining nourishment from dead or decaying material in water; Daszaket al.1999, p. 740). Johnson and Speare (2003, pp. 923-924) found thatB. dendrobatidiscan survive saprophytically outside the amphibian host for up to 7 weeks in lake water and 3 to 4 weeks in tap water. Further, Careyet al.(2003, p. 130) found 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 thatB. dendrobatidiscan develop for even a short period of time outside the amphibian host may greatly increase its impact and accelerate host population declines (Careyet al.2003, p. 130). Also, the possibility of long-term survival ofB. dendrobatidisas a saprophyte may explain the lack of recolonization of streams from which amphibians, such as the Ozark hellbender, have been extirpated (Daszaket al.1999, p. 740). Moreover, hellbenders that are not already infected with the pathogen are continually at risk because temperatures are ideal for the persistence of the chytrid 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 (Careyet 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 pathogen. Climate change is one of the environmental factors that has been indicated as a key promoter in the spread of theB. dendrobatidispathogen (Poundset al.2006, pp. 161-167). Rachowiczet 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 (Daszaket al.1999, p. 741).

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

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 and reduced 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 directly fromB. dendrobatidis.As Randall Junge, Doctor of Veterinary Medicine, Director of Animal Health and Nutrition at the St. Louis Zoo (2007, pers. comm.) stated, “* * * in our captive [hellbender] population, it [chytridiomycosis] is the leading cause of mortality. In my opinion, if this disease becomes established throughout the hellbender range, it will have a significant [further] impact on the population.” Deaths relating to chytridiomycosis continue as the zoo staff searches for an effective way to treat infected animals (Utrup 2007, pers. comm.).

Disease in wild hellbenders — As a result of the incident ofB. dendrobatidisin 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 ofB. dendrobatidiswithin the Current River, 20 percent of the population is positive (heavily positive in a few locations); within the Eleven Point River (Missouri and Arkansas), 16 percent is positive (positives spread throughout river); and within the North Fork of the White River, 15 percent is positive (positives spread throughout river) (Briggler 2008b, pers. comm.). These results indicate the minimum number of infected individuals since polymerase chain reaction (PCR) tests forB. dendrobatidismay 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 believed to be extirpated (Irwin 2008, pers. comm.). During future surveys, all animals encountered (new and re-captures) will be tested for the presence ofB. dendrobatidis. Researchers view the presence ofB. dendrobatidisas one of the most, if not the most, challenging factors affecting the survival of this subspecies (Briggleret al.2007, p. 83).

Since there is clear evidence that chytridiomycosis, a fatal disease in captive Ozark hellbenders, also has been documented in the wild Ozark hellbender population, it is crucial that we not only research techniques to combat this disease, but also address all other threats that may be linked to susceptibility (degraded environmental conditions). The immediacy of this threat has been significantly heightened since this pathogen has been found to occur in all remaining populations of the Ozark hellbender. Researchers are in agreement that this subspecies will have little chance of survival if factors significantly affecting the hellbender are not ameliorated to some degree, especially in light of the additional severe threat of chytridiomycosis (Utrup 2008, pers. comm.).

Wheeleret al.(2003, pp. 250-251) investigated morphological aberrations in the 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 found 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. Currently, we are unable to evaluate the importance of these abnormalities in light of the recent precipitous decline in hellbenders observed in these rivers. Briggler (2007, 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 sacrificed and sent to U.S. Geological Survey's (USGS) Wildlife Disease Lab in Madison, Wisconsin, 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.). Although these abnormalities have not been linked conclusively with the presence ofB. dendrobatidis, considering the types of abnormalities documented (for example, lesions, digit and appendage loss, epidermal sloughing), there may be a connection (Briggler 2007, pers. comm.).

Trout stocking has increased in recent years both in Missouri and Arkansas. In 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 streams that will be stocked with brown and rainbow trout (Missouri Department of Conservation 2003, pp. 31-32). Nonnative trout are stocked in all riversthat historically and currently contain hellbenders (rainbow trout: Niangua, Gasconade, Big Piney, Current, North Fork White, Eleven Point, and Spring rivers; brown trout: Niangua, Gasconade, North Fork White, and Current Rivers) in Missouri (Missouri Department of Conservation 2003, pp. 24-26). 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).

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 rainbow trout and, therefore, may be a more serious threat to hellbenders, particularly at the larval stage. Dunhamet 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.). 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 from native and nonnative predatory fishes. Gall (2008, p. 23, pp. 30-31) found 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 exhibited only weak fright responses when exposed to trout stimuli, they responded with strong fright responses to native predatory fish.

Gall (2008, p. 63) suggests 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, 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). Overall, this study found evidence that predation by introduced trout cannot be ruled out as a factor affecting the Ozark hellbender and possibly contributes to the decline of both Ozark and eastern hellbender populations in Missouri (Gall 2008, p. 63).

In addition to brown trout, walleye (Stizostedion vitreum), although a native species, have been stimulated to approach prey more often and faster in the presence of hellbender secretions (Gall 2008, pp. 23-24). This may be a concern if walleye are further stocked in hellbender streams, because walleye share similar activity periods with hellbenders (Mathis 2008b, pers. comm.).

The discovery of the presence ofBatrachochytrium dendrobatidis(chytridiomycosis) 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.). This pathogen occurs throughout the entire range of the Ozark hellbender and is determined to be a significant threat to the subspecies. 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 that the animal is approaching death (Briggler 2008a, pers. comm.). Researchers view chytridiomycosis as one of the most serious threats to the survival of this subspecies (Briggleret al.2007, p. 83).

Nonnative trout are stocked in all rivers that historically and currently contain hellbenders in Missouri. Predation of larval hellbenders by nonnative trout 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 2008, 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 collecting from 1991 to 1996 and has since allowed only limited numbers of collecting permits (Horner 2008, 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.

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 such highly sensitive aquatic organisms as the Ozark hellbender. Non-point pollution sources (for example, animal and human waste, agricultural practices, increased road construction) may be causing much ofthe degraded water quality throughout the Ozark hellbender's range. This is more apparent in stretches of rivers that are not within federally or State protected lands (Irwin 2008, pers. comm.).

The court's decision inAmerican 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, contribute to the decline of Ozark hellbenders in these systems.

State regulations for gigging and for trout stocking do not protect the Ozark hellbender. The gigging season for suckers (fish mainly in the Catostomidae family) 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 (Missouri Department of Conservation 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).

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 laws 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 Ozark hellbender is not declared as the subspecies but rather as hellbender or eastern hellbender, then it would be difficult for the wildlife inspector to identify it as the prohibited subspecies. 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 rarity increases and, consequently, commercial value increases. The Ozark hellbender is not listed on the appendices 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.

Elsewhere in today'sFederal Register, the Service is proposing to include the hellbender (both the eastern and Ozark subspecies) in Appendix III of CITES. 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.

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. 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 has also proposed, but not finalized, listing the eastern and Ozark hellbender in Appendix III of CITES. Nonetheless, even if the CITES listing is finalized, it would only apply to the export of hellbenders from the United States.

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 changes to the environment (Smith 1990, pp. 311-321) that can significantly impact hellbender habitat. 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. 373) 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, p. 410-415) study, in which hellbender populations from different rivers showed 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 species going extinct.

Recruitment and Reproductive Capability -The hellbender's late sexual maturity leads to a higher risk of death prior to reproduction and lengthened generation times (Congdonet al.1993, pp. 831-832). Hellbender specimens less than 5 years of age are uncommon (Taberet 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; Wheeleret al.2003, p. 153 and p. 155).

Because hellbenders are long-lived, a population may not be highly dependent on recruitment to remain extant (Mayasichet al.2003, p. 22). Empirical and theoretical evidence suggests, however, that the amount of generation overlap within a population (high survivorship among juveniles) is necessary to maintain stable populations (Congdonet al.1993, pp. 830-832; Ellner and Hairston 1994, pp. 413-415). Lack of sufficient recruitment may be limiting the population stability and the ability of hellbender populations to maintain genetic diversity as their habitat is altered (Wheeleret al.2003, p. 155). Pfingsten (1990, p. 49) also cautions, however, that lack of larvae detection could mean that the larvae occupy a microhabitat that has yet to be surveyed.

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. There is a clear need to direct resources toward determining the cause of the apparent reduction in sperm counts for males from declining populations in Missouri. Because motility and viability appeared unaffected, artificial insemination might be a viable conservation technique, although 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 (Wheeleret al.2003, p. 155). Genetic studies have repeatedly demonstrated very low genetic diversity in hellbender populations, which may be a factor in the decline of the species (Routman 1993, Kucuktaset al.2001). 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.

The small size and isolation of Ozark hellbender populations and loss of genetic diversity could exacerbate other factors negatively affecting the subspecies and accelerate possible extinction. These factors are particularly detrimental when combined with the factors affecting the hellbender, such as of habitat loss, water quality degradation, chytridiomycosis, and unauthorized collection and trade.

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 (Briggleret 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 ofBatrachochytrium 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.). Researchers view chytridiomycosis as one of the most serious threats to the survival of this subspecies, which has a total estimated population size of 590 individuals (Briggleret al.2007, p. 83).

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, 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 alllife stages, reducing dissolved oxygen levels, increasing contaminants (that bind to sediments), and reducing prey populations. Increased nitrate levels and fecal coliform, 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, and change water temperatures and flows below reservoirs. 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.

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 significant threat to hellbenders during the breeding season (Nickerson and Briggler 2007, pp. 209-211). Trout stocking continues to occur on hellbender streams both in Missouri and Arkansas. The lack of larval and sub-adult hellbenders present may be attributed to predation by nonnative stocked trout. The increase in number or size of recreational boats and 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 increased susceptibility to chytridiomycosis due to these threats, has created a situation in which the Ozark hellbender is likely to become functionally extinct (populations no longer viable) within the next couple decades. Researchers and managers agree that, while a solution is being 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.

Projections from the August 2006 PHVA model concluded that the Ozark hellbender metapopulations are expected to decline by more than 50 percent in 12 to 16 years, viability of all individual populations will be low after 20 to 25 years (total individuals equaled fewer than 100 and genetic diversity was less than 90 percent), and risk of metapopulation extinction is high within 40 to 50 years. 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 did not account for the prevalence of chytrid fungus and its possible effects on hellbenders. 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 (Briggleret 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 in danger of extinction throughout all of its range. One information source (Briggleret al.2007, pp. 88-90 and p. 97) estimates that the subspecies may be functionally extinct by 2026 (less than 20 years) if we do not take actions to slow or reverse the downward trajectory.

We have carefully assessed the best scientific and commercial information available regarding past, present, and future threats to the Ozark hellbender. The population numbers continue to decline as a result of the multiple threats impacting this subspecies, increasing extinction risk. Based on the immediacy 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, on the basis of the best -scientific and commercial information available, we are proposing to list the Ozark hellbender as an endangered species. Because we find that this subspecies meets the definition of an endangered species (in danger of extinction) throughout all of its range, it is unnecessary to analyze its status in a significant portion of its range.

Critical habitat is defined in section 3 of the Act as:

(i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(I) essential to the conservation of the species and

(II) which may require special management considerations or protection; and

(ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, Federal action agency's and the applicant's obligation is not to restore or recover the species, but to implementreasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time it was listed must contain the physical and biological features essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (areas on which are found the physical and biological features (PBFs) laid out in the appropriate quantity and spatial arrangement for the conservation of the species). Under the Act and regulations at 50 CFR 424.12, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that those areas are essential for the conservation of the species and that designation limited to those areas occupied at the time of listing would be inadequate to ensure the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in theFederal Registeron July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species.

Areas that are important to the conservation of the species, but are outside the critical habitat designation, will continue to be subject to conservation actions we implement under section 7(a)(1) of the Act. Areas that support populations are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available scientific information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time these planning efforts calls for a different outcome.

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 theFederal Register. The degree of detail in those maps and boundary descriptions is far greater than the general location descriptions provided in this proposal 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 websites, usually with maps of the 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. 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 given the species site fidelity and ease of capture once located.

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.). The agencies believe that designating critical habitatcould negate their efforts to restrict access to location information 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 5thand 9thCircuit Court of Appeals have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (seeGifford Pinchot Task Forcev.U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9thCir. 2004) andSierra Clubv.U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442F (5thCir. 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 PBFs 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 its 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.

Ozark hellbenders primarily occur on non-Federal lands. The species occurs exclusively on private lands in Arkansas and predominately on private lands in Missouri. In Missouri, Ozark hellbenders do occur on lands managed by the National Park Service (Ozark National Scenic Riverway) 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 ensure that a Federal action would not result in the destruction or adverse modification of the designated 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 educate 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 educate landowners, State and local governments, and the public regarding important conservation values. Furthermore, 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 (Ozark Hellbender Working Group 2008, Outreach and Education Chapter).

The Ozark Hellbender Working Group, formed in 2001, is composed of personnel from Federal and State agencies, academia, zoos, non-profit 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 criticalhabitat) puts the species in further peril. The Ozark hellbender is critically imperiled, requiring a focused and comprehensive approach to reducing threats. Several measures are currently being implemented to address the threat of unauthorized collection and trade of hellbenders, and additional measures will be implemented if the species is listed under the Act. 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 increase the degree of threats to the Ozark hellbender and, at best, provide nominal benefits for this taxon, we find that the increased threat to the Ozark hellbender from the designation of critical habitat significantly outweighs any benefit of designation.

We have determined that the designation of critical habitat would increase unauthorized collection and trade threats to the Ozark hellbender. The Ozark hellbender is valued in the pet trade, and that value is likely to increase as the species becomes rarer. Critical habitat designation may provide some benefits to the conservation of the Ozark hellbender, for example, by identifying areas important for conservation. However, we have determined that the benefits of designating critical habitat for the Ozark hellbender are minimal. We have concluded that, even if some benefit from designation may exist, the increased threat to the species from unauthorized collection and trade outweighs any benefit to the taxon. A determination to not designate critical habitat also supports the measures taken by the States to control and restrict information on the locations of Ozark hellbenders and to no longer make location 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.

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. Section 7(a)(4) requires Federal agencies to confer informally with us on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. 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, and Federal loan programs. Activities will trigger consultation under section 7 of the Act if they may affect the Ozark hellbender addressed in this rule.

The listing of the Ozark hellbender would subsequently lead to development of a 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, identify responsibilities, 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 would be able to grant funds to the States of Missouri and Arkansas for management actions promoting the conservation of the Ozark hellbender.

The Act and implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. As such, these prohibitions would be applicable to the Ozark hellbender. The prohibitions, under 50 CFR 17.21 and 17.31, 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 theFederal Registeron 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 proposed 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 takestatement 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 would be likely to result in a violation of section 9; however, possible violations are not limited to these actions alone:

(1) Unauthorized 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 flipping large rocks within streams, 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 (seeFOR FURTHER INFORMATION CONTACTsection). 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 Division, Henry Whipple Federal Building, 1 Federal Drive, Fort Snelling, MN 55111; Phone 612-713-5350; Fax 612-713-5292).

In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” that was published on July 1, 1994 (59 FR 34270), we will seek the expert opinion of at least three appropriate independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analysis. We will send copies of this proposed rule to the peer reviewers immediately following publication in theFederal Register.

We will consider all comments and information we receive during this comment period on this proposed rule during our preparation of a final determination. Accordingly, our final decision may differ from this proposal.

The Act provides for one or more public hearings on this proposal, if we receive any requests for hearings. We must receive your request for a public hearing within 45 days after the date of thisFederal Registerpublication. Send your request to the address shown in theADDRESSESsection. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in theFederal Registerand local newspapers at least 15 days before the first hearing.

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. 4321et 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 theFederal Registeron October 25, 1983 (48 FR 49244).

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in theADDRESSESsection. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

A list of the references used to develop this proposed rule is available upon request (seeFOR FURTHER INFORMATION CONTACTsection).

The primary authors of this proposed rule are the staff members of the Columbia (Missouri) Ecological Services Field Office (seeFOR FURTHER INFORMATION CONTACTsection).

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

1. The authority citation for part 17 continues to read as follows:

2. Amend § 17.11(h) by adding an entry for “Hellbender, Ozark” in alphabetical order under AMPHIBIANS to the List of Endangered and Threatened Wildlife as follows:

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we request comments or suggestions on this proposed rule. We particularly seek comments concerning:

(1) Biological, trade, or other relevant data concerning any threats (or lack thereof) to this species (including subspecies), and regulations that may be addressing those threats.

(2) Additional information concerning the range, distribution, and population size of this species (including subspecies).

(3) Any information on the biological or ecological requirements of this species (including subspecies).

(4) Any information regarding legal or illegal collection of or trade in this species (including subspecies).

You may submit your comments and materials concerning this proposed rule by one of the methods listed in theADDRESSESsection. We will not consider comments sent by e-mail or fax or to an address not listed in theADDRESSESsection.

If you submit a comment viahttp://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the website. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments onhttp://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule,will be available for public inspection onhttp://www.regulations.gov, or by appointment, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays, at the U.S. Fish and Wildlife Service, Division of Management Authority, 4401 N. Fairfax Drive, Room 212, Arlington, VA 22203; telephone 703-358-1908.

CITES, an international treaty, regulates the import, export, re-export, and introduction from the sea of certain animal and plant species. CITES was negotiated in 1973 in Washington, DC, at a conference attended by delegations from 80 countries. The United States ratified the Convention on September 13, 1973, and it entered into force on July 1, 1975, after it had been ratified by the required 10 countries. Currently 175 countries have ratified, accepted, approved, or acceded to CITES; these countries are known as Parties.

The text of the Convention and the official list of all species included in its three Appendices are available from the CITES Secretariat's website athttp://www.cites.orgor upon request from the Division of Management Authority at the address provided inFOR FURTHER INFORMATION CONTACTabove.

Section 8A of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531et seq.), designates the Secretary of the Interior as the U.S. Management Authority and U.S. Scientific Authority for CITES. These authorities have been delegated to the Fish and Wildlife Service. The original U.S. regulations implementing CITES took effect on May 23, 1977 (42 FR 10465, February 22, 1977), after the first meeting of the Conference of the Parties (CoP) was held. The CoP meets every 2 to 3 years to vote on proposed resolutions and decisions that interpret and implement the text of the Convention and on amendments to the list of species in the CITES Appendices. The current U.S. CITES regulations (50 CFR part 23) took effect on September 24, 2007.

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

To include a species in or remove a species from Appendices I or II, a Party must propose an amendment to the Appendices for consideration at a meeting of the CoP. The adoption of such a proposal requires approval of at least two-thirds of the Parties present and voting. However, a Party may add a native species to Appendix III independently, without the vote of other Parties, under Articles II and XVI of the Convention. Likewise, if the status of an Appendix-III species improves or new information shows that it no longer needs to be listed, the listing country can remove the species from Appendix III without consulting the other CITES Parties.

Inclusion of native U.S. species in Appendix III provides the following benefits:

(1) An Appendix-III listing ensures the assistance of the other CITES Parties, through the implementation of CITES permitting requirements in controlling international trade in the species.

(2) Listing U.S. native species in Appendix III would, in appropriate cases, enhance the enforcement of State and Federal conservation measures enacted for the species by regulating international trade in the species. Shipments containing CITES-listed species receive greater scrutiny from border officials in both the exporting and importing countries. When a shipment containing a non-listed species is exported from the United States, it is a lower inspection priority for the Service than a shipment containing a CITES-listed species. Furthermore, many foreign countries have limited legal authority and resources to inspect shipments of non-CITES-listed wildlife. Appendix-III listings for U.S. species will give these importing countries the legal basis to inspect such shipments, and deal with CITES and national violations when they detect them.

(3) Another practical outcome of listing a species in Appendix III is that records are kept and international trade in the species is monitored. We will gain and share new information on such trade with State fish and wildlife agencies, and others who have jurisdiction over resident populations of the Appendix-III species. They will then be able to better determine the impact of the trade on the species and the effectiveness of existing State management activities, regulations, and cooperative efforts. International trade data and other relevant information gathered as a result of an Appendix-III listing will help policymakers determine whether we should propose the species for inclusion in Appendix II, remove it from Appendix III, or retain it in Appendix III.

(4) When any live CITES-listed species (including an Appendix-III species) is exported (or imported), it must be packed and shipped according to the International Air Transport Association (IATA) Live Animals Regulations to reduce the risk of injury and cruel treatment. This requirement helps to ensure the survival of the animals while they are in transport.

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 10thand 14thmeetings of the CoP), which provides further guidance to Parties for the listing of their native species in Appendix III. The Resolution, which is the basis for our criteria for listing species in Appendix III provided in our regulations at 50 CFR 23.90(c), recommends that a Party:

(a) Ensure that (i) The species is native to its country; (ii) Its national regulations are adequate to prevent or restrict exploitation and to control trade, for the conservation of the species, and include penalties for illegal taking, trade or possession and provisions for confiscation; and (iii) Its national enforcement measures are adequate to implement these regulations;

(b) Determine that, notwithstanding these regulations and measures, there are indications that the cooperation of the Parties is needed to control illegal trade; and

(c) Inform the Management Authorities of other range States, the known major importing countries, the Secretariat and the Animals Committee or the Plants Committee that it is considering the inclusion of the species in Appendix III and seek their opinion on the potential effects of such inclusion.

Therefore, we have used the following criteria in deciding to list U.S. species in Appendix III as outlined in 50 CFR 23.90(c):

(1) The species must be native to the country listing the species.

(2) The species must be protected under that country's laws or regulations to prevent or restrict exploitation and control trade, and the laws or regulations are being implemented.

(3) The species is in international trade, and there are indications that the cooperation of other Parties would help to control illegal trade.

(4) The listing Party must inform the Management Authorities of other range countries, the known major importing countries, the Secretariat, and the Animals Committee or the Plants Committee that it is considering the listing and seek their opinions on the potential effects of the listing.

CITES does not allow the exclusion of particular parts or products for any species listed in Appendix I or the exclusion of parts or products of animal species in Appendix II. However, Article XVI of the Convention allows for either all specimens of a species or only certain identifiable parts or products of a specimen (in addition to whole specimens) to be listed in Appendix III. For example, the current listing in CITES Appendix III ofCedrela odorata(Spanish cedar) by Colombia, Guatemala, and Peru includes only logs, sawn wood, and veneer sheets. Therefore, if the criteria listed above are met, we could list any designated parts or products of a species in Appendix III, if we inform the CITES Secretariat of the limited listing.

For this listing, consultation with other range countries is not applicable since hellbenders are endemic to the United States. After reviewing the information submitted in response to this proposal, we will make a final decision on whether to include this species in CITES Appendix III. We will publish our decision in theFederal Register. If we decide to list the species in CITES Appendix III, we will notify the CITES Secretariat. The listing will take effect 90 days after the CITES Secretariat informs the CITES Parties of the listing.

We monitor the trade of all U.S. Appendix-III species. If either of the following occurs, we will consider removing the species from Appendix III: (1) We determine that international trade in the species is very limited (as a general guide, fewer than 5 shipments per year or fewer than 100 individual animals or plants); and (2) we determine that trade (legal and illegal) in the species (either internationally or in interstate commerce) is not a concern. If, after monitoring the trade of any U.S. Appendix-III species and evaluating its status, we determine that the species meets the CITES criteria for listing in Appendix I or II, based on the criteria contained in 50 CFR 23.89, we will consider whether to propose the species for inclusion in Appendix I or II.

Permits and other requirements: The export of an Appendix-III species listed by the United States requires an export permit issued by the Service's Division of Management Authority (DMA). DMA will issue a permit only if the applicant obtained the specimen legally, without violating any applicable U.S. laws, including relevant State wildlife laws and regulations, and the live specimen is packed and shipped according to the IATA Live Animals Regulations to reduce the risk of injury and cruel treatment. DMA, in determining if the applicant legally obtained the specimen, is required to consult relevant State and Federal agencies. Since the conservation and management of these species is primarily under the jurisdiction of State agencies, we will consult those agencies to ensure that specimens destined for export were obtained in compliance with State laws and regulations. Unlike species listed in Appendices I and II, no scientific non-detriment finding is required by the Service's Division of Scientific Authority (DSA) for export of an Appendix-III species. However, DSA will monitor and evaluate the trade, to decide if there is a conservation concern that would require any further Federal action. With a few exceptions, any shipment containing wildlife must be declared to a Service Wildlife Inspector upon export and must comply with all applicable regulations.

Process, Findings, and Fees: To apply for a CITES permit, an applicant is required to furnish to DMA a completed CITES export permit application (with check or money order to cover the cost of processing the application). You may obtain information about CITES permits from our website athttp://www.fws.gov/permits/ImportExport/ImportExport.shtmlor from DMA (seeFOR FURTHER INFORMATION CONTACT). We will review the application to decide if the export meets the criteria in 50 CFR 23.60.

In addition, live animals must be shipped to reduce the risk of injury, damage to health, or cruel treatment. We carry out this CITES requirement by stating clearly on all CITES permits that shipments must comply with the IATA Live Animals Regulations. The Service's Office of Law Enforcement (OLE) is authorized to inspect shipments of CITES-listed species during export to ensure that they comply with these regulations. Additional information on permit requirements is available from DMA (seeFOR FURTHER INFORMATION CONTACT); additional information on declaration of shipments, inspection, and clearance of shipments is available upon request from the OLE:

U.S. Fish and Wildlife Service, Office of Law Enforcement, 4401 North Fairfax Drive, MS-LE-3000, Arlington, VA 22203; telephone 703-358-1949; facsimile 703-358-2271. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

In a series of five notices published in theFederal Registerbetween 1982 and 1994 (47 FR 58454, 50 FR 37958, 54 FR 554, 56 FR 58804, and 59 FR 58982), we identified the hellbender (Cryptobranchus alleganiensis) as a taxon native to the United States with a listing candidate status under the Endangered Species Act of category 2. At that time, taxa included in category 2 were those taxa for which we had information indicating that it was possibly appropriate to list such taxa as threatened or endangered, but for which persuasive data was not sufficiently available to support proposed rules.

We first identified the Ozark hellbender (Cryptobranchus alleganiensis bishopi) as a candidate species in a notice of review published in theFederal Registeron 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 theCenter 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 theFederal Register(70 FR 24870), we changed the LPN from 6 to 3 because of the increased immediacy of threats since the Ozark hellbender was elevated to candidate status in 2001. The threat of particular concern was the annual increases in recreational pressures on rivers the Ozark hellbender inhabits.

Elsewhere in today'sFederal Register, the Service proposes to list the Ozark hellbender as federally endangered under the Endangered Species Act of 1973, as amended.

The destruction and modification of habitat, siltation, construction of dams, water quality, disease, lack of genetic variation, predation by nonnative fish, climate change, and the inadequacy of existing regulatory mechanisms have been implicated as contributing to the decline of hellbenders (Mayasichet al.2003, pp. 18-24 and Briggleret al.2007, pp. 16-44). Additionally, overcollecting has been considered a serious threat in some areas; a decline in hellbender populations in the early 1990s was apparently due to collecting (Stuartet al.2008, p. 637). Moreover, it has been suggested that scientific collecting may have negatively impacted hellbender populations (Mayasichet al.2003, p. 20).

Information on the legal and illegal take of hellbenders and the number of hellbenders that enter into the pet trade is limited. However, between 1969 and 1989, the documented harvest of 558 Ozark hellbenders from the North Fork of the White River (NFWR) in Missouri comprised 49.6 percent for scientific study, 45.9 percent for the pet trade, 1.8 percent for educational programs, and 2.7 percent that were unattributed (Nickerson and Briggler 2007, p. 208). Approximately 48.5 percent of this documented take (or 271) of 558 Ozark hellbenders was illegal and was a substantial factor in the decline of Ozark hellbender populations in the NFWR (Nickerson and Briggler 2007, p. 214). Likewise, information on the number of hellbenders that enter international trade is also limited. We have recently documented hellbenders in international trade. Also, since hellbenders are not currently a CITES-listed species, it is possible that past hellbender shipments have been recorded generically in the Service's Declaration System as non-CITES amphibians rather than as hellbenders. In addition, at the 2005 Hellbender Symposium (June 19-22, 2005, Lakeview, Arkansas), it was reported that U.S.-origin hellbenders were found for sale in Japanese pet stores, which is likely the largest overseas market for this species (Briggler, pers. comm. with Okada, 2005).

For more information on the threats contributing to the decline of hellbenders, see our proposal to list the Ozark hellbender as federally endangered under the Endangered Species Act of 1973, as amended, elsewhere in today'sFederal Register.

We propose to list the hellbender (Cryptobranchus alleganiensis), including its two subspecies, the eastern hellbender (Cryptobranchus alleganiensis alleganiensis) and the Ozark hellbender (Cryptobranchus alleganiensis bishopi), in CITES Appendix III, including live and dead whole specimens, and all readily recognizable parts, products, and derivatives. This proposed rule, if adopted, would apply to all living and dead hellbenders and their readily recognizable parts, products, and derivatives. The term readily recognizable is defined in our regulations at 50 CFR 23.5 and means any specimen that appears from a visual, physical, scientific, or forensic examination or test; an accompanying document, packaging, mark, or label; or any other circumstances to be a part, product, or derivative of any CITES wildlife or plant, unless such part, product, or derivative is specifically exempt from the provisions of CITES or 50 CFR part 23.

The hellbender is a large, aquatic salamander attaining a maximum length of 29 inches (in) (74 centimeters (cm)) (Petranka 1998, p. 140). Native to cool, fast-flowing streams of the central and eastern United States (Briggleret al.2007, p. 8), the hellbender usually avoids water warmer than 68 °Fahrenheit (F) (20 °Celsius (C)) (Stuartet al.2008, p. 636). The rarity of specific habitats that hellbenders require, especially at low elevations, may severely limit hellbender migration between rivers and render the range of hellbenders highly fragmented (Sabatino and Routman 2008, p. 7). Successful migration to and colonization of new locations by hellbenders may only occur when geologic or climatic changes result in the formation of migratory paths suitable to hellbenders (Sabatino and Routman 2008, p. 8). Populations of the once-common hellbender have declined by 77 percent since the 1970s (Briggleret al.2007, p. 8). Population declines are likely due to a combination of factors such as diminished water quality, human-caused siltation, collection, and persecution (Briggleret al.2007, p. 8). Crayfish and small fish are the dietary mainstay of hellbenders (Petranka 1998, p. 144).

Although two hellbender subspecies are recognized, the eastern hellbender and the Ozark hellbender, the taxonomic differentiation between hellbender subspecies is not well agreed upon by experts, and discussion continues on whether the eastern hellbender and the Ozark hellbender are distinct species or subspecies (Mayasichet al.2003, p. 2). Irrespective of the taxonomic differentiation of hellbenders, all currently recognized hellbender subspecies ofCryptobranchus alleganiensiswould be included in the CITES Appendix III listing.

Eastern and Ozark hellbenders are very similar in habitat selection, movement, and reproductive biology (Nickerson and Mays 1973a, pp. 44-55). Although some differences in color pattern exist, the eastern subspecies is described as having dorsal spotting and a uniformly colored chin and the Ozark subspecies is described as having dark dorsal blotching and pronounced chin mottling (Mayasichet al.2003, p. 2). Hellbender subspecies are most easily identified by geographic range (Mayasichet 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).

The eastern hellbender ranges from southern and western New York southward to northern Georgia, Alabama, and Mississippi and westward to central Missouri (Nickerson and Mays1973a, p. 3). It is estimated that there are over 300 metapopulations across the eastern United States, containing approximately 350,000 eastern hellbenders over one year of age (Briggleret al.2007, p. 85).

Ozark hellbenders are endemic to the White River drainage in northern Arkansas and southern Missouri (Johnson 2000, pp. 40-41), historically occurring in portions of the Spring, White, Black, Eleven Point, and Current Rivers and their tributaries (North Fork White River, Bryant Creek, and Jacks Fork) (LaClaire 1993, p. 3). It is estimated that there are 4 metapopulations of Ozark hellbenders, containing approximately 600 Ozark hellbenders over one year of age (Briggleret al.2007, p. 83).

The hellbender is considered “Near Threatened” by the International Union for Conservation of Nature (IUCN) because the species is probably in significant decline and because of widespread habitat loss throughout much of its range. The CITES Technical Work Group of the Association of Fish and Wildlife Agencies has concluded that including hellbenders in CITES Appendix III is warranted in order to help ensure conservation of the species in the wild and to assist State agencies in regulating harvest and trade.

Eastern hellbenders are protected to varying degrees, ranging from “Not Protected” to “Endangered,” by State laws within the United States. Although there are stable populations in some areas, the eastern hellbender is declining throughout its range, which includes portions of the following 16 States: Alabama, Georgia, Illinois, Indiana, Kentucky, Maryland, Mississippi, Missouri, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia.

One State (North Carolina) indicates the ecological status of eastern hellbenders in that State as stable. North Carolina lists the eastern hellbender as a “Special Concern Species” and take is regulated and may occur under certain provisions.

Five States (Maryland, Missouri, New York, Pennsylvania, and Virginia) indicate the ecological status of eastern hellbenders in those States as declining or seriously declining. Maryland and Missouri list the eastern hellbender as “Endangered” and take is generally prohibited. New York lists the eastern hellbender as “Special Concern” and as a small game species with no open season. In Pennsylvania, the eastern hellbender is classified as a protected salamander with no open season. Virginia lists the eastern hellbender as “Special Concern” and adult eastern hellbenders can not be taken for private use. However, in Virginia juvenile eastern hellbenders less than six inches in total length may be used as fish bait.

One State (Georgia) indicates the ecological status of eastern hellbenders in that State as rare, lists the species as “Rare” and prohibits take. One State (Illinois) indicates the ecological status of eastern hellbenders in that State as possibly extinct, lists the species as “Endangered” and generally prohibits take.

Six States (Alabama, Mississippi, Ohio, South Carolina, Tennessee, and West Virginia) indicate that the ecological status of eastern hellbenders in those States is not known. Alabama and Mississippi classify the eastern hellbender as a non-game species; Alabama generally prohibits take while regulated take is permitted in Mississippi. Ohio lists the eastern hellbender as “Endangered” and take is generally prohibited. In South Carolina, the eastern hellbender is not protected and take is not regulated. In Tennessee, the eastern hellbender is protected as a non-game native species in need of management and take is prohibited. The eastern hellbender is not protected in West Virginia and regulated take for commercial purposes is allowed. We have not received information on the ecological status of eastern hellbenders in two States (Indiana and Kentucky). Indiana lists the species as “Endangered” and prohibits take. Kentucky lists the eastern hellbender as “Special Concern” and the species can not be taken for commercial purposes. However, in Kentucky eastern hellbenders may be collected from public waters for use as fish bait for personal use.

The Ozark hellbender only occurs in Arkansas and Missouri. The Ozark hellbender is listed as “Protected” by Arkansas and “Endangered” by Missouri and take is prohibited in both States. Despite these designations, Arkansas and Missouri indicate that the Ozark hellbender in those States is in serious decline. Evidence indicates that no populations of Ozark hellbenders appear to be stable (Wheeleret al.2003, pp. 153 and 155). As stated earlier, elsewhere in today'sFederal Register, the Service proposes to list the Ozark hellbender as federally endangered under the Endangered Species Act of 1973, as amended.

Under section 3372(a)(1) of the Lacey Act Amendments of 1981 (16 U.S.C. 3371-3378), it is unlawful to import, export, transport, sell, receive, acquire, or purchase any wildlife taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States. This prohibition of the Lacey Act would apply in instances where hellbenders were unlawfully collected from Federal lands, such as those Federal lands within the range of hellbenders that are owned and managed by the U.S. Forest Service or the National Park Service.

It is unlawful under section 3372(a)(2)(A) of the Lacey Act to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State. Because many State laws and regulations prohibit or strictly regulate the take of hellbenders, certain acts with hellbenders acquired unlawfully under State law would result in a violation of the Lacey Act Amendments of 1981 and thus provide for federal enforcement due to a violation of State law.

Based on the recommendations contained in Resolution Conf. 9.25 (Rev. CoP14) and the listing criteria provided in our regulations at 50 CFR 23.90, the hellbender qualifies for listing in CITES Appendix III. Despite the protective status for hellbenders in many States, declines have been evident throughout the range of the hellbender. Existing State laws have not been completely successful in preventing the unauthorized collection and trade of hellbenders. Listing hellbenders in Appendix III is necessary to allow us to adequately monitor international trade in the taxa; to determine whether exports are occurring legally, with respect to State law; and to determine whether further measures under CITES or other laws are required to conserve this species and its subspecies. An Appendix-III listing would lend additional support to State wildlife agencies in their efforts to regulate and manage hellbenders, improve data gathering to increase our knowledge of trade in hellbenders, and strengthen State and Federal wildlife enforcement activities to prevent poaching and illegal trade. Furthermore, listing all hellbenders in Appendix III would enlist the assistance of other Parties in our efforts to monitor and control trade in this species and its subspecies.

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 proposed rule, if finalized, would result in DMA notifying the CITES Secretariat to amend Appendix III by including the hellbender, including its two subspecies, the eastern hellbender and the Ozark hellbender, in Appendix III of CITES for the United States. After analysis of the comments on the proposed rule, we will publish our final decision in theFederal Register. If this proposed rule is finalized, the listing would take effect 90 days after the CITES Secretariat informs the Parties of the listing. If we adopt a final rule, we will contact the Secretariat prior to publishing the rule to clarify the exact time period required by the Secretariat to inform the Parties of the listing.

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

This proposed rule establishes the means to monitor the international trade in a species native to the United States and does not impose any new or changed restriction on the trade of legally acquired specimens. Based on current exports of hellbenders, we estimate that the costs to implement this rule will be less than $2,000,000 annually due to the costs associated with obtaining permits.

According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. This proposed rule:

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

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

(c) Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings: (a) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.” This proposed rule would not impose a legally binding duty on non-Federal Government entities or private parties and would not impose an unfunded mandate of more than $100 million per year or have a significant or unique effect on State, local, or tribal governments or the private sector because we, as the lead agency for CITES implementation in the United States, are responsible for the authorization of shipments of live wildlife, or their parts and products, that are subject to the requirements of CITES.

This proposed rule does not contain any new collections of information that require approval by Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. Information that we would collect under this proposed rule on FWS Form 3-200-27 is covered by an existing OMB approval and has been assigned OMB control number 1018-0093, which expires on November 30, 2010. We may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. The action is categorically excluded under 516 DM 2, Appendix 1.10 in the Departmental Manual. A detailed statement under the National Environmental Policy Act of 1969 is not required.

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

In accordance with E.O. 13132 (Federalism), this proposed rule would not have significant Federalism effects. A Federalism assessment is not required because this proposed rule would not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Although this proposed rule would generate information that would be beneficial to State wildlife agencies, it is not anticipated that any State monitoring or control programs would need to be developed to fulfill the purpose of this proposed rule. We have consulted the States, through the Association of Fish and Wildlife Agencies, on this proposed action. The CITES Technical Work Group of the Association of Fish and Wildlife Agencies has concluded that including hellbenders in CITES Appendix III is warranted in order to help ensure conservation of the species in the wild and to assist State agencies in regulating harvest and trade.

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

We are required by Executive Orders 12866 and 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in theADDRESSESsection. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

A complete list of all references cited in this proposed rule is available on the Internet athttp://www.regulations.govor upon request from the Division of Management Authority, U.S. Fish and Wildlife Service (seeFOR FURTHER INFORMATION CONTACT).

The primary author of this proposed rule is Clifton A. Horton, Division of Management Authority, U.S. Fish and Wildlife Service (seeFOR FURTHER INFORMATION CONTACT).