Proposed Rule2025-15491
Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Borneo Earless Monitor
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 14, 2025
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to list the Borneo earless monitor (Lanthanotus borneensis), a lizard species from Borneo, as a threatened species under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12-month finding on a petition to list the Borneo earless monitor. After a review of the best scientific and commercial data available, we find that listing the species is warranted. Accordingly, we propose to list the Borneo earless monitor as a threatened species with protective regulations under section 4(d) of the Act ("4(d) rule"). If we finalize this rule as proposed, it would add this species to the List of Endangered and Threatened Wildlife and extend the Act's protections to the species.
Full Text
<html>
<head>
<title>Federal Register, Volume 90 Issue 155 (Thursday, August 14, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 155 (Thursday, August 14, 2025)]
[Proposed Rules]
[Pages 39161-39173]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-15491]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2025-0110; FXES1111090FEDR-256-FF09E21000]
RIN 1018-BH99
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for the Borneo Earless Monitor
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Borneo earless monitor (Lanthanotus borneensis), a lizard
species from Borneo, as a threatened species under the Endangered
Species Act of 1973, as amended (Act). This determination also serves
as our 12-month finding on a petition to list the Borneo earless
monitor. After a review of the best scientific and commercial data
available, we find that listing the species is warranted. Accordingly,
we propose to list the Borneo earless monitor as a threatened species
with protective regulations under section 4(d) of the Act (``4(d)
rule''). If we finalize this rule as proposed, it would add this
species to the List of Endangered and Threatened Wildlife and extend
the Act's protections to the species.
DATES: Comments must be received by October 14, 2025. Comments
submitted electronically using the Federal eRulemaking Portal (see
ADDRESSES, below) must be received by 11:59 p.m. eastern time on the
closing date. We must receive requests for a public hearing, in
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by
September 29, 2025.
ADDRESSES:
Comment submission: You may submit comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-HQ-ES-2025-0110,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-ES-2025-0110, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-HQ-ES-2025-0110.
FOR FURTHER INFORMATION CONTACT: Rachel London, Manager, Branch of
Delisting and Foreign Species, Ecological Services Program, U.S. Fish
and Wildlife Service; <a href="/cdn-cgi/l/email-protection#fc8e9d9f949990a3909392989392bc9a8b8fd29b938a"><span class="__cf_email__" data-cfemail="1e6c7f7d767b72417271707a71705e78696d30797168">[email protected]</span></a>; telephone 703-358-2171.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States. Please see Docket No. FWS-HQ-ES-2025-0110 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> for a document that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
Borneo earless monitor meets the Act's definition of a threatened
species; therefore, we are proposing to list it as such. Listing a
species as an endangered or threatened species can be completed only by
issuing a rule through the Administrative Procedure Act rulemaking
process (5 U.S.C. 551 et seq.).
What this document does. We propose to list the Borneo earless
monitor as a threatened species with a species-specific protective
regulation under section 4(d) of the Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (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. We have determined that the Borneo earless monitor
meets the Act's definition of a threatened species due primarily to the
threats of overcollection and illegal trade for the pet trade,
deforestation, and the inadequacy of existing regulatory mechanisms.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends; and
[[Page 39162]]
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may be affecting the continued existence of the
species, which may include habitat destruction, modification, or
curtailment; overutilization; disease; predation; the inadequacy of
existing regulatory mechanisms; or other natural or manmade factors;
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species; and
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) Additional information concerning the historical and current
status of this species.
(4) Information to assist us with applying or issuing protective
regulations under section 4(d) of the Act that may be necessary and
advisable to provide for the conservation of the Borneo earless
monitor. In particular, we seek information concerning:
(a) The extent to which we should include any of the Act's section
9 prohibitions in the 4(d) rule;
(b) Whether we should consider any additional or different
exceptions from the prohibitions in the 4(d) rule; and
(c) Information on impacts (conservation and economic) associated
with implementing the 4(d) rule.
Please include any supplemental information with your submission
(such as scientific journal articles or other publications) to allow us
to verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination, as section 4(b)(1)(A)
of the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
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 submissions on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Our final determination may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any information that may become available after this proposal. Based
on the new information we receive (and, if relevant, any comments on
that new information), we may conclude that the species is endangered
instead of threatened, or we may conclude that the species does not
warrant listing as either an endangered species or a threatened
species. In addition, we may change the parameters of the prohibitions
or the exceptions to those prohibitions in the protective regulations
issued under section 4(d) of the Act if we conclude it is appropriate
in light of comments and new information received. For example, we may
expand the prohibitions if we conclude that the protective regulation
as a whole, including those additional prohibitions, is necessary and
advisable to provide for the conservation of the species. Conversely,
we may establish additional or different exceptions to the prohibitions
in the final rule if we conclude that the activities would facilitate
or are compatible with the conservation and recovery of the species. In
our final rule, we will clearly explain our rationale and the basis for
our final decision, including why we made changes, if any, that differ
from this proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register at least 15 days before the hearing. We may hold the
public hearing in person or virtually via webinar. We will announce any
public hearing on our website, in addition to the Federal Register. The
use of virtual public hearings is consistent with our regulations at 50
CFR 424.16(c)(3).
Previous Federal Actions
On November 2, 2022, we received a petition from the Center for
Biological Diversity to list the Borneo earless monitor as an
endangered species under the Act (16 U.S.C. 1531 et seq.). On August
17, 2023, we published in the Federal Register (88 FR 55991) a 90-day
finding that the petition presented substantial scientific and
commercial information indicating that the petitioned action may be
warranted. This 90-day finding notice initiated a status review for the
Borneo earless monitor.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the Borneo earless monitor. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review in
listing and recovery actions under the Act (<a href="https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf">https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf</a>), we solicited independent scientific review of the information
contained in the Borneo earless monitor SSA report. We sent the SSA
report to three independent peer reviewers and received two responses.
The peer reviews can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket
No. FWS-HQ-ES-2025-0110. In preparing this proposed rule, we
incorporated the results of these reviews, as appropriate, into the SSA
report, which is the foundation for this proposed rule.
Summary of Peer Reviewer Comments
As discussed in Peer Review above, we received comments from two
peer reviewers on the draft SSA report. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the contents of the SSA report. The peer
reviewers generally concurred with our methods and conclusions, and
provided additional references, clarifications, suggestions, and
information on the species' reproductive biology, occurrence records,
and presence in
[[Page 39163]]
both international and domestic wildlife trade. No substantive changes
to our analysis and conclusions within the SSA report were deemed
necessary, and peer reviewer comments are addressed in version 1.0 of
the SSA report (Service 2025, entire).
I. Proposed Listing Determination
Background
The Borneo earless monitor (Lanthanotus borneensis; hereafter
``earless monitor'') is a lizard species that is endemic to the island
of Borneo in Southeast Asia (Das and Auliya 2021, p. 2) and occurs in
all three of Borneo's range states: Malaysia, Indonesia, and Brunei
Darussalam (Service 2025, p. 3). The species is the only extant member
of the monotypic family, Lanthanotidae (Steindachner 1877, p. 160). It
is distinguished by a long, brown body covered in six longitudinal rows
of keeled scales and several morphological features that make it well
adapted for subterranean and semi-aquatic lifestyles, including short
limbs, sharp claws, a prehensile tail, small eyes with a translucent
lower eyelid, small dorsal nostrils, and no external ear opening
(Steindachner 1877, p. 160; McDowell and Bogert 1954, pp. 9-10; Nijman
and Stoner 2014, p. 6).
There is limited information available that describes the species'
life-history and habitat requirements. Earless monitors are rarely
encountered in the wild because they are nocturnal, fossorial (i.e.,
adapted to digging and lives primarily underground), semi-aquatic, and
capable of entering a semi-torpid state where they may remain hidden
for up to 8 days (Das and Auliya 2021, p. 4; Leah et al. 2023, pp. 510-
512). Earless monitors are carnivorous (Rehak et al. 2019, p. 32), and
their natural diet is known to include earthworms, shrimp, and fish
(Shirawa and Bacchini 2015, p. 15; Langner 2017, p. 7), and may also
include tadpoles, small frogs, and insects (Arida et al. 2018, p. 88).
The species occupies flat, low-lying tropical forests below 300 meters
(m) (984 feet (ft)) in elevation (Stoner and Nijman 2015, p. 55). It is
known to occur in areas with shallow freshwater streams that are either
rocky or sandy and in areas with a closed canopy (Yaap et al. 2012, p.
3069; Langner 2017, pp. 3-4; Das and Auliya 2021, p. 4; Leah et al.
2023, pp. 510-511).
We are not aware of any published studies that describe the
reproductive biology of the earless monitor in the wild; however, the
species has successfully reproduced in captivity (Shirawa and Bacchini
2015, pp. 15-18). The species can survive in captivity for up to 7.5
years (Mendyk et al. 2015, p. 46) and reaches sexual maturity at
approximately 2 to 3 years of age (Sprackland pers. comm. 2025).
Earless monitors are oviparous, meaning they reproduce by laying eggs
outside of their body, and produce between 2 and 8 oval, leathery-
shelled eggs that measure approximately 30 millimeters in length (Das
2013, p. 533; Voronin and Kudryavtsev 2019, p. 61). Eggs take
approximately 62 to 90 days to hatch when incubated at 27 to 31 degrees
Celsius ([deg]C) (80.6 to 87.8 degrees Fahrenheit ([deg]F)) (Shirawa
and Bacchini 2015, p. 18; Voronin and Kudryavtsev 2019, p. 61; Das and
Auliya 2021, p. 4; Sprackland pers. comm. 2025). The total time from
fertilization to hatching can exceed six months (Das and Auliya 2021,
p. 5).
A thorough review of the taxonomy, life history, and ecology of the
earless monitor is presented in the SSA report (version 1.0; Service
2025, pp. 2-8).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following five factors:
(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.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis, which is
further described in the 2009 Memorandum Opinion on the foreseeable
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at <a href="https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf">https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf</a>).
The foreseeable future extends as far into the future as the Service
can make reasonably reliable predictions about the threats to the
species and the species' responses to those threats. We need not
identify the
[[Page 39164]]
foreseeable future in terms of a specific period of time. We will
describe the foreseeable future on a case-by-case basis, using the best
scientific and commercial data available and taking into account
considerations such as the species' life-history characteristics,
threat projection timeframes, and environmental variability. In other
words, the foreseeable future is the period of time over which we can
make reasonably reliable predictions. ``Reliable'' does not mean
``certain''; it means sufficient to provide a reasonable degree of
confidence in the prediction, in light of the conservation purposes of
the Act.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data available
regarding the status of the species, including an assessment of the
potential threats to the species. The SSA report does not represent our
decision on whether the species should be proposed for listing as an
endangered or threatened species under the Act. However, it does
provide the scientific basis that informs our regulatory decisions,
which involve the further application of standards within the Act and
its implementing regulations and policies.
To assess the earless monitor's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (e.g., wet or dry, warm or cold years);
redundancy is the ability of the species to withstand catastrophic
events (e.g., droughts, large pollution events); and representation is
the ability of the species to adapt to both near-term and long-term
changes in its physical and biological environment (e.g., climate
conditions, pathogens). In general, species viability will increase
with increases in (and decrease with decreases in) resiliency,
redundancy, and representation (Smith et al. 2018, p. 306). Using these
principles, we identified the species' ecological requirements for
survival and reproduction at the individual, population, and species
levels, and described the beneficial and risk factors influencing the
species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' future condition, including responses to
positive and negative environmental and anthropogenic influences.
Throughout each of these stages, we used the best scientific and
commercial data available to characterize viability as the ability of a
species to sustain populations in the wild over time, which we then
used to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-HQ-
ES-2025-0110 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
Species Needs
Based on the species' biology described above and in the SSA report
(version 1.0; Service 2025, pp. 2-8), the earless monitor requires
clear flowing freshwater streams with adequate invertebrate food
resources; intact, connected lowland forest habitats with a closed
canopy; and sufficient conspecific individuals to reproduce with and
sustain a population. Due to the limited data available, our assessment
of species-level needs is developed further based on general principles
as they apply to lizard biology.
Conservation Efforts and Regulatory Mechanisms
Earless monitors are protected in all three of their range states
(Malaysia, Indonesia, and Brunei Darussalam). It is illegal to remove
the species from the wild without a permit. ``Wild'' includes specimens
taken from the wild and held in captivity, specimens born in captivity
where the parents mated in the wild (such as from fertilized eggs or
gravid females collected from the wild), and any specimens for which
there is insufficient evidence that the specimen meets the requirements
for bred in captivity under the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) Resolution 10.16
(Rev. CoP19). However, with a permit, it is legal to export individuals
bred in captivity, identified using CITES source code C (50 CFR part
23; Service 2025, pp. 9-10). Only one registered captive-breeding
facility in Indonesia is permitted to legally harvest earless monitors
from the wild to be used as breeding stock. These wild-caught
individuals cannot be offered for sale, and only individuals sourced
from an F2 generation (i.e., the second generation of offspring
resulting from breeding of wild-caught individuals) or subsequent
generation may be legally exported (Service 2025, p. 9). The Indonesian
government regulates captive breeding of their native reptiles through
a captive-breeding production plan, which calculates a quota of animals
allowed to be produced by registered captive-breeding facilities and
exported with a permit (Janssen and Chng 2018, p. 19). The captive-
breeding quota for earless monitors allows for the legal exportation of
20 individuals from Indonesia on an annual basis (Janssen and Chng
2018, p. 22).
Malaysia, Indonesia, and Brunei Darussalam are all parties to
CITES, and the trade of CITES-listed wildlife from all three range
states is internationally monitored and regulated (Nijman and Stoner
2014, p. 8). Earless monitors were included in Appendix II of CITES in
2016--a measure that regulates, but does not ban, international trade
(Nijman 2021, p. 71). International trade to, from, or through the U.S.
in Appendix-II specimens must meet all applicable requirements under
U.S. CITES implementing regulations (50 CFR part 23), wildlife import/
export requirements (50 CFR part 14), and general permitting
requirements (50 CFR part 13).
While there are several protected areas within northwestern Borneo,
the majority protect high-elevation areas (above 300 m (984 ft)) where
earless monitors have not been observed (Service 2025, pp. 10-11).
Illegal logging also occurs within many of the protected areas that
overlap the earless monitor's known range (Service 2025, p. 12), so it
is unlikely that these areas offer the species reliable protection.
Threats
Collection for International Pet Trade
Rare species with unique taxonomic status are more valuable on the
international pet market (Altherr and Lameter 2020, p. 6), and
consequently, there is a significant demand for earless monitors in
international trade (Arida et al. 2018, p. 83). Shortly after earless
monitors were first discovered in Indonesia, individuals were offered
for sale online for as much as $20,000 (Sprackland pers. comm. 2025).
[[Page 39165]]
However, current prices have dropped to approximately $2,500
(<a href="http://coldbloodedshop.com">coldbloodedshop.com</a>, accessed March 12, 2025). The financial reward of
successfully smuggling earless monitors out of Borneo likely outweighs
the risk of getting caught (Nijman and Stoner 2014, p. 12),
incentivizing the illegal smuggling of wild-caught earless monitors
into the international market.
While earless monitors have legal protection in all three of their
range states (see Conservation Efforts and Regulatory Mechanisms,
above), wildlife conservation laws in Indonesia are rarely enforced
(Shepherd et al. 2004, as cited in Eaton et al. 2015, p. 8), and
illegal trade of protected species often goes unpunished (Natusch and
Lyons 2012, p. 2902). Wildlife traffickers use a variety of methods to
illegally smuggle earless monitors out of Borneo, such as deliberately
concealing them on their bodies, or falsifying the contents of luggage
or international shipments (Baderan et al. 2023, p. 156). At least 12
thwarted smuggling attempts between October 2015 and March 2024
resulted in the seizure of 101 earless monitors (Baderan et al. 2023,
p. 156; Shepherd 2023, p. 1; Shepherd and Shepherd 2024, p. 1).
Smuggling earless monitors out of Borneo carries considerable risk
because there is more direct culpability when caught, and earless
monitors may die along the way due to the stressful and inhumane
conditions they experience (Shepherd 2023, p. 1).
At least 695 earless monitors have been taken from the wild in
Indonesia since the species was first discovered there in 2008 (Yaap et
al. 2012, p. 3069). This estimate includes earless monitors seized from
smugglers (Baderan et al. 2023, p. 156; Shepherd 2023, p. 1; Shepherd
and Shepherd 2024, p. 1), offered for sale online (Stoner and Nijman
2015, pp. 55-56; Janssen and Krishnasamy 2018, pp. 3-4), offered for
sale in pet shops (Janssen 2018, p. 86), reported in trade databases
(Service 2025, pp. 34-35), circulated within Indonesia's domestic
wildlife trade (Nijman pers. comm. 2024), or on exhibit at zoos (Rehak
et al. 2019, pp. 30-40, Nijman 2021, pp. 73-74). This number is likely
a low estimate because it does not account for individuals that were
involved in private transactions or that died along the trade route.
Deforestation
Primary forests in Borneo are quickly declining due to intensive
logging, fire, and conversion to agricultural plantations (Gaveau et
al. 2014, p. 1). Between 1973 and 2015, approximately 50 percent of the
forests in Borneo were cut down and converted to oil palm and other
industries (Gaveau et al. 2016, pp. 3-4). All three of the earless
monitor's range states experienced major deforestation during this 42-
year period: Kalimantan, Indonesia; Sarawak, Malaysia; and Brunei
Darussalam lost 35, 26, and 10 percent of their forest area,
respectively (Gaveau et al. 2016, pp. 3-4). While rates of forest loss
have slowed in the past decade, Borneo has continued to lose an annual
average of 248,000 hectares of primary forest since 2015 (Service 2025,
p. 16). If similar historical deforestation trends continue, only
approximately 33 percent of Borneo's tropical forests are projected to
remain by 2050 (Trancoso et al. 2022, pp. 6-7), the majority of which
will occur in high-elevation areas (above 300 m (984 ft)) that the
earless monitor likely does not occupy (Trancoso et al. 2022, p. 7).
While the earless monitor's range may be wider than what is currently
known (Das pers. comm. 2019, as cited in Das and Auliya 2021, p. 2;
Sprackland pers. comm. 2025), any potentially undiscovered
subpopulations are likely vulnerable to deforestation because it is a
pervasive threat throughout Borneo's low-elevation areas (below 300 m
(984 ft)) (Gaveau et al. 2014, p. 5; Service 2025, pp. 16-19), and it
directly diminishes many specific habitat features upon which earless
monitors are dependent.
Earless monitors rely on low-elevation tropical rainforests with a
closed canopy and access to freshwater streams (see Background, above).
Extensive canopy cover contributes to high rates of evapotranspiration
that help maintain a lower air temperature (Bonan 2008, pp. 1444-1445).
Deforestation reduces canopy cover (Gorte and Sheikh 2010, p. 3), which
results in an average temperature increase of 1.7 degrees Celsius
([deg]C) (3.1 degrees Fahrenheit ([deg]F)), and an increased frequency
of extreme temperatures (>31 [deg]C (87.8 [deg]F)) in deforested areas
(McAlpine et al. 2018, p. 7). Many reptile species likely cannot
withstand an average temperature increase of 2 [deg]C (3.6 [deg]F)
(Johnson 2012, p. 71), and because fossorial lizards are especially
vulnerable to deforestation (Theisinger and Ratinarivo 2015, p. 278),
temperature increases alone may render deforested areas unsuitable for
earless monitors. Deforestation also reduces daily precipitation
(McAlpine et al. 2018, pp. 5-7) and contributes to stream channel
narrowing, which diminishes the pollution processing capabilities of
stream habitats (Sweeney et al. 2004, p. 14134). In addition, forests
that are converted to oil palm plantations are often cleared with
slash-and-burn agriculture (Dhandapani and Evers 2020, p. 4), a method
that causes riparian areas to quickly lose tree root systems that
stabilize stream banks and prevent erosion (Iwata et al. 2003, pp. 468-
471). Erosion directly increases the amount of fine substrate in the
stream bed, which diminishes abundance and biodiversity of their
benthic assemblages (i.e., groups of organisms that live on the bottom
sediments of a water body; Iwata et al. 2003, pp. 468-470). These
conditions likely reduce food availability for earless monitors because
they feed on invertebrates that are present in benthic assemblages,
such as worms and crustaceans (see Background, above). These
invertebrates are likely further diminished by the use of insecticides
on oil palm plantations, which are commonly applied to crops (Dearlove
et al. 2024, p. 2). Insecticide use in Indonesia increased by
approximately 700 percent from 1990 to 2021 (Ritchie et al. 2022,
unpaginated), a rise that is likely correlated with the expansion of
oil palm plantations in the country. Insecticides are most commonly
detected in soil and water (Dearlove et al. 2024, p. 9) and therefore
likely cause the mortality of many invertebrates that earless monitors
eat.
Nevertheless, the earless monitor may tolerate some limited
anthropogenic disturbance. In the 1960s, several specimens were
collected from flat coastal areas, some of which were long-cultivated
and included rice farms (Harrisson 1963, p. 407). The majority of
published 21st century encounters with the species occurred in forests
adjacent to human-modified areas, such as oil palm plantations,
agricultural fields, and logging camps (Yaap et al. 2012, pp. 3069-
3070; Langner 2017, pp. 3-4; Leah et al. 2023, p. 510). Collectively,
these published encounters provide evidence that earless monitors are
capable of persisting both within and adjacent to human-modified
habitats. However, the edge effects (e.g., increased temperature,
increased wind exposure, reduced moisture, etc.) resulting from oil
palm establishment extend over 300 m (984 ft) into adjacent forests
(Nunes et al. 2021, pp. 5-6), and because over 60 percent of the known
earless monitor subpopulations that were historically found near
agricultural areas within coastal Sarawak are now considered extirpated
(Das and Auliya 2021, pp. 2-4), it is probable that earless monitors
were simply persisting near these human-modified areas, and the species
is not capable of sustaining populations adjacent to these areas over
the long-term.
[[Page 39166]]
Earless monitors persisting in diminished habitats adjacent to
anthropogenic disturbance are vulnerable to the increased risk of fire
associated with these habitats. Deforestation and the subsequent
conversion of cleared forest to oil palm plantations increase fire risk
(Trancoso et al. 2022, p. 13; Dhandapani and Evers 2020, pp. 3-4), and
Borneo has recently experienced an increase in forest fires as a
consequence of deforestation (Gaveau et al. 2018, p. 3). Deforestation
increases temperature extremes (Trancoso et al. 2022, p. 2; McAlpine et
al. 2018, p. 7), and the subsequent conversion of deforested areas to
oil palm plantations exacerbates local fire risk because oil palms use
more water, lowering the water table and leaving behind highly
flammable fuel (Dhandapani and Evers 2020, pp. 3-4). Even selective
logging--a practice that is pervasive throughout much of the earless
monitor's known range (Service 2025, p. 19)--increases fire risk
(Langner et al. 2007, p. 2338).
Climate Change
The Intergovernmental Panel on Climate Change predicts that
continued greenhouse gas emissions will likely increase global
temperatures to 1.5 [deg]C (2.7 [deg]F) above pre-industrial levels by
2040, even under low-emissions scenarios (Lee et al. 2023, p. 12). In
addition, the cumulative effects of deforestation and climate change
are projected to increase the average temperature of low-elevation
(below 500 m (1640 ft)) areas in Borneo by 3.5 [deg]C (6.3 [deg]F) by
the end of the 21st century (Davies-Barnard et al. 2023, p. 4).
Reptiles are more susceptible to temperature increases than other taxa
due to their limited dispersal ability and reliance on ambient
temperature to regulate their body temperature (Root and Schneider
2002, pp. 20-21). Consequently, many species of reptiles may not be
able to withstand temperature increases of 2 [deg]C (3.6 [deg]F)
(Johnson 2012, p. 73). Fossorial lizards are particularly sensitive to
thermoregulatory constraints caused by temperature increases
(Theisinger and Ratinarivo 2015, p. 278), so the earless monitor is
likely more susceptible to temperature increases than other reptile
species, to the extent that increased ambient temperature increases
soil temperatures.
Higher temperatures caused by both climate change and deforestation
are also expected to exacerbate fire risk in Borneo (Davies-Barnard et
al. 2023, p. 8), further contributing to the loss of earless monitor
habitat. Climate change is also expected to increase the frequency of
extreme rainfall and winds from tropical cyclones in Southeast Asia
(Christensen et al. 2007, pp. 885-887). Extreme rainfall has previously
caused mass mortality events in earless monitors (Harrisson 1963, pp.
408), so an increase in frequency of extreme weather events is likely
to increase the risk of extirpation of earless monitor subpopulations.
Cumulative Effects
We note that by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.
Current Condition
We describe the current condition of the earless monitor based on
the needs of the species and their relation to resiliency, redundancy,
and representation. Species with high resiliency are able to withstand
environmental, demographic, and genetic stochasticity by having self-
sustaining (i.e., large, high fecundity), connected populations
occupying suitable habitat across spatial heterogenous conditions.
Resiliency of the earless monitor is primarily influenced by the health
of the subpopulations and the extent and connectivity of suitable
habitat. While no numerical population data is available to
quantitatively assess the status and trends of earless monitors (Das
and Auliya 2021, p. 4), we are able to assess the resiliency of the
species based on a multitude of factors.
Earless monitors are known from approximately 15 confirmed
historical localities, only 5 of which are considered extant (Das and
Auliya 2021, pp. 1-2). Unconfirmed reports suggest additional
extralimital subpopulations may exist (Das pers. comm. 2019, as cited
in Das and Auliya 2021, p. 2; Sprackland pers. comm. 2025). Extant
earless monitor subpopulations are likely vulnerable to habitat loss
resulting from deforestation, overcollection and illegal trade, and
climate change.
Over the past 50 years, the majority of forests in coastal Sarawak
have been cleared and subsequently converted to oil palm plantations
(Service 2025, p. 17), resulting in the extirpation of earless monitors
from these areas (Das and Auliya 2021, p. 2). The cumulative effects of
deforestation (e.g., loss of canopy cover, temperature increases,
stream narrowing, sediment alterations, increase in fire risk; see
Threats, above) render the remaining habitat largely unsuitable for
earless monitors, and deforestation is likely to blame for the
extirpation of the species from coastal Sarawak. It is unknown the
specific degree of human disturbance earless monitors are capable of
tolerating, and it is probable that subpopulations are simply
persisting within and adjacent to agricultural areas, rather than
successfully thriving there. At a minimum, stream habitats adjacent to
deforested areas are hotter, contaminated by insecticides, have
diminished pollution processing capabilities, and contain fewer
potential food resources (see Threats, above). Yet, some earless
monitor encounters in the 21st century have occurred in forests
adjacent to agricultural areas (e.g., Yaap et al. 2012, pp. 3069-3070;
Langner 2017, p. 3), and more research is needed to determine if these
individuals are successfully reproducing or are simply persisting as a
sink population. Earless monitors are also threatened by overcollection
and illegal trade for the pet trade, and subpopulations that are
targeted by wildlife traffickers cannot adequately replace themselves.
Disproportionate exploitation is probable to lead to earless monitors
becoming a rarer and more appealing target for wildlife traffickers and
may ultimately lead to the extirpation of targeted subpopulations
(Janssen and Krishnasamy 2018, p. 2). Overharvesting for the pet trade
has caused the extirpation of other reptile subpopulations in the past
(Stuart et al. 2006, p. 1137), and earless monitor subpopulations that
are targeted by wildlife traffickers are similarly vulnerable.
Considering these factors, the earless monitor has low resiliency to
adapt to and withstand environmental and demographic stochasticity.
Species with high redundancy are less prone to the negative effects
of random, catastrophic, local events because they have many
populations that are geographically dispersed over a wide area. The
complete range of earless monitors is not known, yet the remaining
known extant subpopulations occupy a narrow range (52 square kilometers
(20.1 square miles); Das and
[[Page 39167]]
Auliya 2021, p. 1). Deforestation is removing viable forest habitat
throughout the earless monitor's known range, degrading the quality of
the remaining habitat and likely isolating remaining earless monitor
subpopulations from each other (see Threats, above). In addition,
climate change is predicted to increase the frequency of extreme fire
and flooding events (Davies-Barnard et al. 2023, p. 8; Christensen et
al. 2007, pp. 885-887), which will consequently increase the
vulnerability of all earless monitor subpopulations to these threats.
We have no information on the size or health of the remaining earless
monitor subpopulations; however, we consider them to be vulnerable to
deforestation, extreme weather events, and overcollection and illegal
trade for the pet trade (see Threats, above). While unconfirmed reports
of extralimital encounters with earless monitors suggest the potential
existence of additional subpopulations (Das pers. comm. 2019, as cited
in Das and Auliya 2021, p. 2; Sprackland pers. comm. 2025), we lack
information detailed enough to assess the extent to which these
subpopulations support redundancy. Considering the five known
subpopulations that occupy a limited range, earless monitors likely
have limited redundancy; however, we acknowledge that other
subpopulations may exist that would contribute to redundancy to some
degree.
Representation is improved in species with high genetic
variability, or which inhabit a wide range of ecological settings. Both
of these characteristics facilitate adaptation to future environmental
changes, whether natural or anthropogenic. On the other hand,
representation is reduced in the absence of these characteristics.
Earless monitors do not occupy a wide range of ecological settings and
are restricted to flat tropical forests at low elevations with access
to freshwater streams (see Background, above). There is no available
information about the genetic diversity within or between any earless
monitor subpopulations, and there is no information on the degree to
which the species exhibits behavioral plasticity. Reptiles tend to have
a low dispersal ability (Root and Schneider 2002, pp. 20-21), and if
the earless monitor's dispersal ability is also low, then there is
likely limited gene flow between the remaining extant earless monitor
subpopulations. Earless monitors likely have low representation because
they are dependent on a specific habitat type, have a limited dispersal
ability, and have a small number of known subpopulations that are not
dispersed over a wide area (Das and Auliya 2021, p. 1).
Future Condition
Based on our assessment, we concluded that the primary potential
threats to the earless monitor are (1) overcollection and illegal trade
for the pet trade and (2) habitat loss resulting from deforestation and
increasing temperatures, both of which are exacerbated by the
inadequacy of existing regulatory mechanisms. Because of the high
uncertainty associated with the earless monitor's abundance, geographic
range, adaptive capacity, and ability to tolerate anthropogenic
disturbance, the foreseeable future by which we can assess the threats
to this species--and its response to those threats--is relatively short
(10 to 20 years).
We expect the collection and illegal trade of earless monitors for
the pet trade to continue into the future. As long as earless monitors
retain a high market value in the pet trade, they will continue to be
targeted by wildlife traffickers. A species' value in the pet trade is
often driven by many traits earless monitors possess, such as unique
taxonomic status and rarity in the market (Altherr and Lameter 2020, p.
6). These traits increase the potential for overcollection and illegal
trade of wild earless monitors from wild populations, making the
species even more rare and more valuable in the pet trade. While
legitimate captive-breeding efforts may open another avenue for earless
monitors to enter the pet trade without harming wild populations, there
is limited evidence for these efforts in range states. Therefore, it is
reasonable to assume that future harvesting pressure on earless
monitors will, at a minimum, continue at the same level as the current
condition, and may increase until legitimately bred in captivity
earless monitors help alleviate the demand for wild-caught individuals.
The best available scientific and commercial data suggests that if
the current rates of deforestation continue, the majority of Borneo's
low-elevation areas will be deforested by 2050 (Trancoso et al. 2022,
pp. 6-7), and most of the remaining forests will occur in high-
elevation areas that earless monitors do not occupy. Because the
remaining known extant earless monitor subpopulations occupy a narrow
range, this amount of forest loss would equate to a significant loss of
habitat for the species. Furthermore, climate change is projected to
increase global temperatures by at least 1.5 [deg]C (2.7 [deg]F) above
pre-industrial levels by 2040 (Lee et al. 2023, p. 12), and on Borneo,
by 3.5 [deg]C (6.3 [deg]F) in elevations below 500 m by the end of this
century (Davies-Barnard et al. 2023, p. 4). Among reptiles, fossorial
lizards such as the earless monitor are particularly susceptible to
temperature increases (Theisinger and Ratinarivo 2015, p. 278). Given
that an increase of 2 [deg]C (3.6 [deg]F) will render much of Borneo's
lowlands climatically unsuitable for many native reptile species
(Johnson 2012, p. 71). it is likely that earless monitors will be
unable to withstand the temperature increases projected within the
foreseeable future.
In summary, earless monitors, will continue to face the threats of
habitat loss and overcollection and illegal trade for the pet trade,
and these threats may increase in the future. Deforestation was a
contributing factor in the extirpation of over 60 percent of the
historical earless monitor subpopulations (Das and Auliya 2021, p. 1),
and it is expected to continue to remove suitable forest habitat,
diminish the quality of the remaining forest habitat, increase fire
risk, and reduce the connectivity between the remaining known extant
earless monitor subpopulations and other unconfirmed subpopulations,
affecting viability within the foreseeable future (see Threats, above).
In addition, should collection pressure from wildlife traffickers
continue or potentially increase as anticipated in the future,
overexploitation may lead to the extirpation of targeted subpopulations
(Janssen and Krishnasamy 2018, p. 2). Although the earless monitor
currently maintains subpopulations, including in disturbed areas, and
reportedly occupies additional areas within Borneo, the species'
resiliency, redundancy, and representation are likely to decrease
within the foreseeable future as they continue to be affected by
threats of deforestation and overcollection and illegal trade.
Determination of Borneo Earless Monitor's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range and a ``threatened species'' as a species likely to become
an endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether a species meets the definition of an endangered species or a
threatened species because of any of the following
[[Page 39168]]
five factors: (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.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the factors in section 4(a)(1)
of the Act, we determined that ongoing deforestation and overcollection
and illegal trade for the international pet trade will likely reduce
the viability of the earless monitor within the foreseeable future.
The complete range of the earless monitor is unknown, due in part
to the species' cryptic nature and limited number of occurrence records
(see Background, above). In the past decade, demand from the
international pet trade has driven a renewed effort to locate the
species, and because at least 695 individuals have entered the pet
trade since 2012 (see Threats, above), the existence of additional
subpopulations beyond those that are known is plausible. However, the
threat of habitat loss from deforestation and land use change is so
pervasive throughout the lowlands of Borneo that any potentially
undiscovered subpopulations are likely vulnerable to these threats. The
earless monitor's ability to sustain populations long-term in forested
habitats adjacent to anthropogenically disturbed areas is likely
limited because the majority of historical subpopulations that have
occupied similar areas are presumed to be extirpated. Furthermore, we
expect many of the negative impacts associated with deforestation
(e.g., increased temperature, increased fire risk, reduced
precipitation, etc.) to be exacerbated by climate change (see Threats,
above). The projected increase of these threats in the foreseeable
future is likely to reduce the species' viability to a point that it
lacks sufficient resiliency, representation, and redundancy for its
continued existence to be secure.
The threats of ongoing deforestation and overcollection and illegal
trade for the international pet trade are further exacerbated by the
inadequacy of existing regulatory mechanisms (see Threats, above).
Wildlife traffickers are known to illegally smuggle earless monitors
out of the wild for international trade (Baderan et al. 2023, p. 156;
Baderan et al. 2023, p. 156; Shepherd 2023, p. 1; Shepherd and Shepherd
2024, p. 1).
Thus, after assessing the best scientific and commercial data
available, we conclude that the earless monitor is not currently in
danger of extinction but is likely to become in danger of extinction
within the foreseeable future throughout all of its range due to
habitat loss and degradation (Factor A), overcollection and illegal
trade for the pet trade (Factor B), and the inadequacy of existing
regulatory mechanisms (Factor D).
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. The court in Center for Biological Diversity v. Everson,
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of
the Final Policy on Interpretation of the Phrase ``Significant Portion
of Its Range'' in the Endangered Species Act's Definitions of
``Endangered Species'' and ``Threatened Species'' (hereafter ``Final
Policy''; 79 FR 37578, July 1, 2014) that provided if the Service and
the National Marine Fisheries Service (NMFS) (collectively, ``the
Services'') determine that a species is threatened throughout all of
its range, the Services will not analyze whether the species is
endangered in a significant portion of its range.
Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is ``significant'' and (2) the species is in danger of
extinction in that portion. We can choose to address either question
first. Regardless of which question we address first, if we reach a
negative answer with respect to the first question that we address, we
do not need to evaluate the other question for that portion of the
species' range.
Following the court's holding in Everson, we now consider whether
the species is in danger of extinction throughout a significant portion
of its range. In undertaking this analysis for the earless monitor, we
choose to address the status question first.
We evaluated the range of the earless monitor to determine if the
species is in danger of extinction throughout any portion of its range.
The range of a species can theoretically be divided in an infinite
number of ways. We focused our analysis on portions of the species'
range that may meet the Act's definition of an endangered species. For
the earless monitor, we considered whether the threats or their effects
on the species are greater in any biologically meaningful portion of
the species' range than in other portions such that the species is in
danger of extinction in that portion.
We examined the following threats: habitat loss from deforestation
and overcollection and illegal trade for the pet trade, including
cumulative effects.
Because habitat loss from deforestation and land use change is such
a pervasive threat throughout the lowlands of Borneo, its impact is
ubiquitous across all portions of the earless monitor's range.
Overcollection and illegal trade for the pet trade can occur wherever
earless monitor subpopulations are found. Thus, we found no
biologically meaningful portion of the earless monitor's range where
threats are impacting individuals differently from how they are
affecting the species elsewhere in its range such that the status of
the species in that portion differs from any other portion of the
species' range.
Therefore, no portion of the species' range provides a basis for
determining that the species is in danger of extinction in a
significant portion of its range, and we determine that the species is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. This finding does not conflict with the
courts' holdings in Desert Survivors v. U.S. Department of the
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz.
2017) because, in reaching this conclusion, we did not apply the
aspects of the Final Policy, including the definition of
``significant'' that those court decisions held to be invalid.
Determination of Status
Based on the best scientific and commercial data available, we
determine that the earless monitor meets the Act's definition of a
threatened species. Therefore, we propose to list the earless monitor
as a threatened species in accordance with sections 3(20) and 4(a)(1)
of the Act.
Available Conservation Measures
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species so that they no longer need the protective measures of
the Act.
Conservation measures provided to species listed as endangered or
threatened species under the Act
[[Page 39169]]
include recognition as a listed species, planning and implementation of
recovery actions, requirements for Federal protection, and prohibitions
against certain practices. Recognition through listing results in
public awareness, and conservation by Federal, State, Tribal, and local
agencies, foreign governments, private organizations, and individuals.
The Act encourages cooperation with the States and other countries and
calls for recovery actions to be carried out for listed species. The
protection required by Federal agencies, including the Service, and the
prohibitions against certain activities are discussed, in part, below.
Section 7 of the Act, titled ``Interagency Cooperation,'' mandates
all Federal action agencies to use their existing authorities to
further the conservation purposes of the Act and to ensure that their
actions are not likely to jeopardize the continued existence of listed
species or adversely modify critical habitat. Regulations implementing
section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
With respect to the earless monitor, no known actions require
consultation under section 7(a)(2) of the Act. Given the regulatory
definition of ``action'' at 50 CFR 402.02, which clarifies that it
applies to activities or programs carried out ``in the United States or
upon the high seas,'' the earless monitor is unlikely to be the subject
of section 7 consultations because the entire life cycle of the species
occurs in terrestrial areas outside of the United States and the
species is unlikely to be affected by Federal actions. Additionally, no
critical habitat will be designated for the earless monitor because,
under 50 CFR 424.12(g), we will not designate critical habitat within
foreign countries or in other areas outside of the jurisdiction of the
United States.
Section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the
provision of limited financial assistance for the development and
management of programs that the Secretary determines to be necessary or
useful for the conservation of endangered or threatened species in
foreign countries. Sections 8(b) and 8(c) of the Act (16 U.S.C. 1537(b)
and (c)) authorize the Secretary to encourage conservation programs for
foreign listed species, and to provide assistance for such programs, in
the form of personnel and the training of personnel.
Additional requirements apply to activities with the earless
monitor, separate from their proposed listing as a threatened species.
As a CITES-listed species, all international trade of earless monitors
by persons subject to the jurisdiction of the United States must also
comply with CITES requirements pursuant to section 9, paragraphs (c)
and (g), of the Act (16 U.S.C. 1538(c) and (g)) and to 50 CFR part 23.
As ``fish or wildlife'' (16 U.S.C. 1532(8)), earless monitor imports
and exports must also meet applicable wildlife import/export
requirements established under section 9, paragraphs (d), (e), and (f),
of the Act (16 U.S.C. 1538(d), (e), and (f)); the Lacey Act Amendments
of 1981 (16 U.S.C. 3371 et seq.); and 50 CFR part 14. Questions
regarding whether specific activities with the earless monitor would
constitute a violation of section 9 of the Act should be directed to
the Service's Division of Management Authority
(<a href="/cdn-cgi/l/email-protection#1a777b747b7d7f777f746e7b6f6e727568736e635a7c6d69347d756c"><span class="__cf_email__" data-cfemail="533e323d3234363e363d273226273b3c213a272a133524207d343c25">[email protected]</span></a>; 703-358-2104). Section 9(a) of the Act
provides a specific list of prohibitions for endangered species but
does not provide these same prohibitions for threatened species.
Instead, pursuant to section 4(d) of the Act, for any species listed as
a threatened species, the Secretary must issue protective regulations
that are ``necessary and advisable to provide for the conservation of
such species'' (these are referred to as ``4(d) rules''). Additional
measures for the earless monitor are described below (see Protective
Regulations Under Section 4(d) of the Act, below).
We may issue permits to carry out otherwise prohibited activities
involving threatened wildlife under certain circumstances. Regulations
governing permits for threatened wildlife are codified at 50 CFR 17.32,
and general Service permitting regulations are codified at 50 CFR part
13. With regard to threatened wildlife, a permit may be issued for
scientific purposes, to enhance propagation or survival, for economic
hardship, for zoological exhibition, for educational purposes, for
incidental taking, or for special purposes consistent with the purposes
of the Act. The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
The Service may also register persons subject to the jurisdiction
of the United States through its captive-bred wildlife (CBW) program if
certain established requirements are met under the CBW regulations (see
50 CFR 17.21(g)). Through a CBW registration, the Service may allow a
registrant to conduct certain otherwise prohibited activities under
certain circumstances to enhance the propagation or survival of the
affected species, including take; export or re-import; delivery,
receipt, carriage, transport, or shipment in interstate or foreign
commerce in the course of a commercial activity; or sale or offer for
sale in interstate or foreign commerce. A CBW registration may
authorize interstate purchase and sale only between entities that both
hold a registration for the taxon concerned. The CBW program is
available for species having a natural geographic distribution not
including any part of the United States and other species that the
Service Director has determined to be eligible by regulation. The
individual specimens must have been born in captivity in the United
States.
The provisions in section 9(b)(1) of the Act (16 U.S.C. 1538(b)(1))
provide a limited exemption from certain otherwise prohibited
activities regarding wildlife specimens held in captivity or in a
controlled environment on the pre-Act date (for species first listed
after the enactment of the Endangered Species Act, the pre-Act date is
the date of publication in the Federal Register of the final regulation
adding such species to the List of Endangered and Threatened Wildlife
for the first time), provided that such holding and any subsequent
holding or use of the wildlife was not in the course of a commercial
activity (commonly referred to as ``pre-Act'' specimens) (96 Stat.
1426-27 (1982); H.R. Rep. No. 97-835, 97th Cong., 2nd Sess., at 35
(1982) (Conf. Rep.); S. Rep. No. 97-418, 97th Cong., 2nd Sess., at 24-
25 (1982)). Specifically, section 9(b)(1) of the Act states that the
prohibitions of sections 9(a)(1)(A) and 9(a)(1)(G) shall not apply to
any fish or wildlife which was held in captivity or in a controlled
environment on (A) December 28, 1973, or (B) the date of the
publication in the Federal Register of a final regulation adding such
fish or wildlife to any list
[[Page 39170]]
of species published pursuant to section 4(c) of the Act (as relevant
to listed wildlife, the List of Endangered and Threatened Wildlife at
50 CFR 17.11(h)) that such holding and any subsequent holding or use of
the fish or wildlife was not in the course of a commercial activity.
Therefore, for pre-Act wildlife, there is a limited exemption from
the prohibitions associated with: (1) import into, or export from, the
United States of any endangered wildlife, or (2) violation of
regulations pertaining to endangered or threatened wildlife. Other
prohibitions of section 9--including those at section 9(a)(1)(B)-(F)
regarding take of endangered wildlife, possession and other acts with
unlawfully taken wildlife, interstate or foreign commerce in endangered
wildlife, and sale or offer for sale of endangered wildlife--continue
to apply to activities with qualifying endangered pre-Act wildlife
specimens. Specimens born after the pre-Act date and specimens taken
from the wild after the pre-Act date do not qualify as ``pre-Act''
wildlife under the text of section 9(b)(1) of the Act. If a person
engages in any commercial activity with a pre-Act specimen on or after
the pre-Act date, the wildlife would immediately cease to qualify as
pre-Act wildlife and become subject to the relevant prohibitions
because it has been held or used in the course of a commercial
activity.
II. Protective Regulations Under Section 4(d) of the Act
Background
As discussed above under Available Conservation Measures, section
9(a) of the Act provides a specific list of prohibitions for endangered
species but does not provide these same prohibitions for threatened
species. Instead, pursuant to section 4(d) of the Act, for any species
listed as a threatened species, the Secretary must issue protective
regulations that are ``necessary and advisable to provide for the
conservation of such species'' (referred to as ``4(d) rules''). Section
4(d) of the Act contains two sentences. The first sentence states that
the Secretary shall issue such regulations as they deem necessary and
advisable to provide for the conservation of species listed as
threatened species. ``Conservation'' is defined in the Act to mean the
use of all methods and procedures which are necessary to bring any
endangered species or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary.
Additionally, the second sentence of section 4(d) of the Act states
that the Secretary may prohibit by regulation, with respect to any
threatened species, any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
With these two sentences in section 4(d), Congress delegated broad
authority to the Secretary to determine what protections would be
necessary and advisable to provide for the conservation of threatened
species, and even broader authority to put in place any of the section
9 prohibitions, for a given species.
Courts have recognized the extent of the Secretary's discretion
under section 4(d) to develop regulations that are appropriate for the
conservation of threatened species. For example, courts have upheld, as
a valid exercise of agency authority, rules developed under section
4(d) that included limited prohibitions against takings (see Alsea
Valley Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007);
Washington Environmental Council v. National Marine Fisheries Service,
2002 WL 511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules
that do not address all of the threats a species faces (see State of
Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the
legislative history when the Act was initially enacted, ``once an
animal is on the threatened list, the Secretary has an almost infinite
number of options available to him [or her] with regard to the
permitted activities for those species. He [or she] may, for example,
permit taking, but not importation of such species, or he [or she] may
choose to forbid both taking and importation but allow the
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
Under our 4(d) authorities, we put in place protections intended to
both prevent a threatened species from becoming an endangered species
and to promote its recovery. 4(d) rules explain what is prohibited for
a threatened species, thus making the activity unlawful without a
permit or authorization under the Act unless otherwise excepted in the
4(d) rule and may also include affirmative requirements. Section 4(d)
rules are therefore directly related to what actions may require
permits in the future. As discussed in Available Conservation Measures,
permits may be issued for purposes described in our threatened species
permitting regulations at 50 CFR 17.32 and 17.72, including for
recovery actions. We may also except otherwise prohibited activities
through a 4(d) rule itself, in which case threatened species permits
would not be required for those activities.
The provisions of this species' proposed protective regulations
under section 4(d) of the Act are one of many tools that we would use
to promote the conservation of the earless monitor. The proposed
protective regulations would apply only if and when we make final the
listing of the earless monitor as a threatened species. The proposed
protective regulations would promote conservation of the earless
monitor by ensuring that activities undertaken with this species by any
person under the jurisdiction of the United States are also supportive
of the conservation efforts undertaken for the species in Indonesia,
Malaysia, and Brunei Darussalam, as well as under the CITES Appendix-II
listing.
Provisions of the Proposed 4(d) Rule
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the
earless monitor's conservation needs. As discussed above under Summary
of Biological Status and Threats, we have concluded that the earless
monitor is likely to become in danger of extinction within the
foreseeable future primarily due to habitat loss and overcollection and
illegal trade for the pet trade. Section 4(d) requires the Secretary to
issue such regulations as he deems necessary and advisable to provide
for the conservation of each threatened species and authorizes the
Secretary to include among those protective regulations any of the
prohibitions that section 9(a)(1) of the Act prescribes for endangered
species (In re: Polar Bear Endangered Species Act Listing and 4(d) Rule
Litigation, 818 F. Supp. 2d 214, 228 (D.D.C. 2011) (citing Sweet Home
Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1, 8 (D.C. Cir.
1993), rev'd on other grounds, 515 U.S. 687 (1995))). Our necessary and
advisable determination includes consideration of conservation and
economic impacts (Kansas Natural Resources Coalition, et al. v. USFWS,
et al. No. 23CV-00159-DC-RCG (W.D. Tex. 2025). We explain below why we
find that, if finalized, the prohibitions and exceptions in this
proposed rule as a whole satisfy the requirement in section 4(d) of the
Act to issue regulations deemed necessary and advisable to provide for
the conservation of the earless monitor.
The protective regulations we are proposing for the earless monitor
incorporate prohibitions from section 9(a)(1) to address the threats to
the species. The prohibitions of section 9(a)(1) of the Act, and
implementing
[[Page 39171]]
regulations codified at 50 CFR 17.21, make it illegal for any person
subject to the jurisdiction of the United States to commit, to attempt
to commit, to solicit another to commit, or to cause to be committed
any of the following acts with regard to any endangered wildlife: (1)
import into, or export from, the United States; (2) take (which
includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct) within the
United States, within the territorial sea of the United States, or on
the high seas; (3) possess, sell, deliver, carry, transport, or ship,
by any means whatsoever, any such wildlife that has been taken
illegally; (4) deliver, receive, carry, transport, or ship in
interstate or foreign commerce, by any means whatsoever and in the
course of commercial activity; or (5) sell or offer for sale in
interstate or foreign commerce. This protective regulation includes all
of these prohibitions because the earless monitor is at risk of
extinction within the foreseeable future and putting these prohibitions
in place will help to preserve the species' remaining populations.
As discussed above under Summary of Biological Status and Threats,
overcollection and illegal trade for pet trade is affecting the status
of the earless monitor; therefore, regulating activities associated
with potential removal of earless monitors from the wild and preventing
illegal trade is essential for their conservation. The section 9(a)(1)
prohibitions related to trade and commerce through our application of
50 CFR 17.21(b), (e), and (f) will help regulate these activities. As
discussed in Background, it is illegal to remove the species from the
wild without a permit; however, it is legal to export individuals bred
in captivity. We are aware of one company that imports earless monitors
into the United States and at least two companies with earless monitors
in captivity in the United States that engage in interstate commerce
with the species. Therefore, we propose to regulate take of individuals
within the United States, territorial seas, and high seas (50 CFR
17.21(c)(1)), as well as possession and other acts with unlawfully
taken specimens (50 CFR 17.21(d)).
Regulating import and export into, from, and through the United
States, take, and interstate and foreign commerce by persons subject to
the jurisdiction of the United States would contribute to conservation
of the species in its range states and help conserve the species by
eliminating the United States as a potential market for illegally taken
and traded earless monitors. It would ensure any legal activities with
earless monitors under jurisdiction of the United States contribute to
enhancing the conservation of the species, and that any domestic demand
for earless monitors does not contribute to the decline of earless
monitors in the wild.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions that are intended to incentivize
conservation actions or that are not expected to rise to the level that
would have a negative impact (i.e., would have only de minimis impacts)
on the species' conservation. Exceptions to the prohibitions include
those set forth in 50 CFR 17.21(c)(2)-(c)(4), (d)(2), and 50 CFR
17.31(c). These exceptions include allowing any person to take earless
monitors in defense of their own life or the lives of others and for
law enforcement to possess and conduct other acts with illegally taken
earless monitors.
We also propose certain exceptions related to import, export,
trade, and commerce of earless monitors. While we have determined
overcollection and illegal trade are threats to the species, we propose
that legal trade and commerce of bred in captivity specimens that meet
the requirements of CITES (source code C, 50 CFR part 23), including
those that are legally bred in captivity in the United States, can
provide a sustainable use alternative to unsustainable or illegal
sourcing of wild specimens and breeding stock. We have no information
that suggests current legal interstate commerce activities with legally
sourced earless monitors are associated with threats to the species or
would negatively affect any efforts aimed at the recovery of wild
populations of the species. Furthermore, allowing interstate commerce
with legally sourced earless monitors is expected to provide a
conservation benefit to the species because the demands of the pet
trade can be supplied with bred in captivity specimens sourced from
within the United States, which will reduce collection pressure on wild
populations in its range states. Therefore, we are proposing exceptions
to prohibitions and threatened species permitting requirements for
import, export, and interstate and foreign commerce to facilitate legal
trade in bred in captivity specimens (source code C) that are in
accordance with other applicable regulations, including 50 CFR part 23
regulations implementing CITES. Additionally, under 50 CFR 17.8, import
permits are exempted for threatened wildlife species included in
Appendix II of CITES so long as certain requirements are met. The
requirements at 50 CFR 17.8 for exemption from a threatened species
import permit include that the specimen was not acquired in foreign
commerce or imported in the course of a commercial activity; the
species is included in Appendix II of CITES; the specimen is imported
under a valid CITES document and subsequently used in accordance with
CITES regulations (50 CFR part 23); at the time of import, the importer
must provide to the Service documentation that shows the specimen was
not acquired in foreign commerce in the course of commercial activity;
and that all applicable requirements of 50 CFR part 14 have been
satisfied.
In addition, to further the conservation of the species, any
employee or agent of the Service, any other Federal land management
agency, the NFMS, a State conservation agency, or a federally
recognized Tribe, who is designated by their agency or Tribe for such
purposes, may, when acting in the course of their official duties, take
threatened wildlife without a permit if such action is necessary to:
(i) aid a sick, injured, or orphaned specimen; (ii) dispose of a dead
specimen; (iii) salvage a dead specimen that may be useful for
scientific study; or (iv) remove specimens that constitute a
demonstrable but nonimmediate threat to human safety, provided that the
taking is done in a humane manner. Such taking may involve killing or
injuring only if it has not been reasonably possible to eliminate such
threat by live capturing and releasing the specimen unharmed, in an
appropriate area.
We recognize the special and unique relationship that we have with
our State natural resource agency partners in contributing to
conservation of listed species. State agencies often possess scientific
data and valuable expertise on the status and distribution of
endangered, threatened, and candidate species of wildlife and plants.
State agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by their agency for such purposes, would be able to conduct activities
designed to conserve the earless monitor that may result in
[[Page 39172]]
otherwise prohibited take without additional authorization.
In addition, any employee or agent of the Service or of the NMFS,
who is designated by their agency for such purposes, may, when acting
in the course of their official duties, take those species.
Furthermore, we may under certain circumstances issue permits to
carry out one or more otherwise-prohibited activities, including those
described above. The regulations that govern permits for threatened
wildlife state that the Director may issue a permit authorizing any
activity otherwise prohibited with regard to threatened species. These
permits may be issued for the following purposes: scientific purposes,
to enhance propagation or survival, economic hardship, zoological
exhibition, educational purposes, incidental taking, or special
purposes consistent with the purposes of the Act (50 CFR 17.32). The
criteria for issuance of threatened species permits to authorize
otherwise-prohibited activities other than incidental taking are found
in 50 CFR 17.32(a)(2). The import exemption for threatened wildlife
included in Appendix II of CITES (50 CFR 17.8; section 9(c)(2) of the
Act) would apply to this species for qualifying specimens and
activities. Further, as noted above, we may also authorize certain
activities associated with conservation breeding under CBW
registrations. We recognize that captive breeding of wildlife can
support conservation, for example, by producing animals that could be
used for reintroductions. We are not aware of any captive-breeding
programs of earless monitors for this purpose. The proposed 4(d) rule
would apply to all live earless monitors and dead parts and products of
the species and supports conservation management efforts for earless
monitors in the wild in their native range.
The statute also contains certain exemptions from the prohibitions,
which are found in sections 9 and 10 of the Act.
In summary, we find this proposed 4(d) rule contains all the
prohibitions and exceptions necessary and advisable for the
conservation of the earless monitor. The 4(d) rule is necessary and
advisable to provide for the conservation of the earless monitor
because it will regulate activities that pose a threat to the species
and provide certain exceptions for activities with legally sourced and
traded bred in captivity specimens (source code C) that are otherwise
in accordance with relevant regulations, including CITES. In terms of
potential economic impacts, there is minimal current legal import,
export, trade, or commerce of the earless monitor that would be
affected by the 4(d) rule.
Required Determinations
Clarity of the Proposed Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) 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 ADDRESSES. 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.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; title II of Pub. L. 104-121, March 29, 1996), whenever a
Federal 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 effects 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 the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a certification statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities.
While we do not conduct RFA analyses on our classification
determinations under the Act, in accordance with recent caselaw (Kansas
Natural Resources Coalition, et al. v. USFWS, et al. No. 23-CV-00159-
DC-RCG (W.D. Tex. 2025)), we comply with RFA through consideration of
conservation and economic impacts when promulgating 4(d) rules.
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. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities.
As discussed above, in terms of potential economic impacts, there
is minimal current legal import, export, trade, or commerce of earless
monitor that would be affected by the 4(d) rule. We propose exceptions
that would continue to allow import, export, trade, or commerce with
legally obtained earless monitors without additional threatened species
permits, as described above. Possession of a specimen is not itself a
violation and does not require a permit as long as there is not an
unauthorized otherwise-prohibited activity, such as take. Additionally,
the definition of ``harass'' in 50 CFR 17.3, when applied to captive
wildlife, does not include the following practices, procedures, and
provisions if they are ``generally accepted'' and ``not likely to
result in injury to the wildlife'' at issue: animal husbandry practices
that meet or exceed the minimum standards for facilities and care under
the Animal Welfare Act; breeding procedures; or
[[Page 39173]]
provisions of veterinary care for confining, tranquilizing, or
anesthetizing. The take prohibition against harm and kill would apply
to earless monitors in the United States, requiring a permit for any
such activity, except for qualifying non-commercial acts with pre-ESA
wildlife. For the above reasons and based on currently available
information, we certify that, if made final, the proposed 4(d) rule
would not have a significant economic impact on a substantial number of
small business entities. Therefore, an initial regulatory flexibility
analysis is not required.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Branch of Delisting and Foreign Species (see FOR FURTHER
INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by adding an entry for ``Monitor, Borneo earless''
in alphabetical order under REPTILES to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Reptiles
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Monitor, Borneo earless.......... Lanthanotus Wherever found..... T [Federal Register
borneensis. citation when
published as a
final rule]; 50
CFR 17.42(u); \4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. As proposed to be amended at, 86 FR 62434 (November 9, 2021), 87 FR
58648 (September 27, 2022), 88 FR 68070 (October 3, 2023), 88 FR 68370
(October 3, 2023), and 89 FR 103938 (December 19, 2024), further amend
Sec. 17.42 by adding paragraph (u) to read as follows:
Sec. 17.42 Species-specific rules--reptiles.
* * * * *
(u) Borneo earless monitor (Lanthanotus borneensis).
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the Borneo earless monitor. Except as
provided under paragraph (u)(2) of this section and Sec. Sec. 17.4-
17.8, it is unlawful for any person subject to the jurisdiction of the
United States to commit, to attempt to commit, to solicit another to
commit, or cause to be committed, any of the following acts in regard
to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of a commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Import, export, sell or offer for sale in foreign commerce, or
deliver, receive, carry, transport, or ship in foreign commerce in the
course of a commercial activity a live Borneo earless monitor, provided
the specimen is bred in captivity (see 50 CFR 23.24, source code ``C'')
and the requirements in 50 CFR parts 13, 14, and 23 have been met.
(iii) Sell or offer for sale in interstate commerce, or deliver,
receive, carry, transport, or ship in interstate commerce in the course
of a commercial activity a live Borneo earless monitor, provided the
specimen was legally imported or bred in captivity in the United States
(see 50 CFR 23.24, source code ``C'') and the requirements in 50 CFR
parts 13, 14, and 23 have been met.
(iv) Take, as set forth at Sec. 17.31(b).
(v) Take, as set forth at Sec. 17.21(c)(2) through (c)(4) for
endangered wildlife.
(vi) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(vii) Conduct activities as authorized by a captive-bred wildlife
registration under Sec. 17.21(g) for endangered wildlife.
Justin Shirley,
Principal Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. 2025-15491 Filed 8-13-25; 8:45 am]
BILLING CODE 4333-15-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on August 14, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.