Federal Register/Vol. 81, No. 190/Friday, September 30, 2016

Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations 67193

(3) Compliance deadline for existing South Dearborn, Suite 2938, Chicago, IL our determination is based on sources. Existing sources lawfully 60604; telephone 312–216–4720. scientifically sound data, assumptions, discharging into publicly owned Persons who use a telecommunications and analyses. We invited these peer treatment works on or between April 7, device for the deaf (TDD) may call the reviewers to comment on our listing 2015 and June 28, 2016 shall comply Federal Information Relay Service proposal. We also considered all with the PSES by August 29, 2019. All (FIRS) at 800–877–8339. comments and information we received other existing sources shall comply by SUPPLEMENTARY INFORMATION: during the comment period. August 29, 2016. The SSA report underwent Executive Summary * * * * * independent peer review by 21 [FR Doc. 2016–23456 Filed 9–29–16; 8:45 am] Why we need to publish a rule. Under scientists with expertise in eastern BILLING CODE 6560–50–P the Act, a species may warrant massasauga rattlesnake biology, habitat protection through listing if it is management, and stressors (factors endangered or threatened throughout all negatively affecting the species) to the or a significant portion of its range. species. The SSA report and other DEPARTMENT OF THE INTERIOR Listing a species as an endangered materials relating to this determination Fish and Wildlife Service species or threatened species can only can be found on the Midwest Region be completed by issuing a rule. Web site at http://www.fws.gov/ 50 CFR Part 17 Additionally, under the Act, critical midwest/Endangered/ and at http:// habitat shall be designated, to the www.regulations.gov under Docket No. [Docket No. FWS–R3–ES–2015–0145; maximum extent prudent and FWS–R3–ES–2015–0145. 4500030113] determinable, for any species Previous Federal Actions determined to be an endangered species RIN 1018–BA98 or threatened species under the Act. We On September 30, 2015, the Service Endangered and Threatened Wildlife have determined that designating published a proposed rule (80 FR and Plants; Threatened Species Status critical habitat is not prudent for the 58688) to list the eastern massasauga for the Eastern Massasauga eastern massasauga rattlesnake due to rattlesnake as a threatened species Rattlesnake an increased risk of collection and under the Act (16 U.S.C. 1531 et seq.). persecution. We accepted public comments on the AGENCY: Fish and Wildlife Service, This rule makes final the listing of the proposed rule for 60 days, ending Interior. eastern massasauga rattlesnake November 30, 2015. Please refer to the ACTION: Final rule. (Sistrurus catenatus) as a threatened proposed rule (80 FR 58688; September species. 30, 2015) for a detailed description of SUMMARY: We, the U.S. Fish and The basis for our action. Under the previous Federal actions concerning this Wildlife Service (Service), determine Act, we can determine that a species is species. threatened species status under the an endangered or threatened species Background Endangered Species Act of 1973 (Act), based on any of five factors: (A) The as amended, for the eastern massasauga present or threatened destruction, Please refer to the proposed listing rattlesnake (Sistrurus catenatus), a modification, or curtailment of its rule (80 FR 58688; September 30, 2015) rattlesnake species found in 10 States habitat or range; (B) overutilization for for a summary of species information. and 1 Canadian Province. The rule adds commercial, recreational, scientific, or Summary of Biological Status and educational purposes; (C) disease or this species to the Federal List of Threats Endangered and Threatened Wildlife. predation; (D) the inadequacy of We have also determined that the existing regulatory mechanisms; or (E) The Act directs us to determine designation of critical habitat for the other natural or manmade factors whether any species is an endangered eastern massasauga rattlesnake is not affecting its continued existence. species or a threatened species because prudent due to an increased risk of Although there are several factors that of any factors affecting its continued collection and persecution. are affecting the eastern massasauga existence. We completed a rattlesnake’s status, the loss of habitat comprehensive assessment of the DATES: This rule is effective October 31, was historically, and continues to be, biological status of the eastern 2016. the primary threat, either through massasauga rattlesnake, and prepared ADDRESSES: This final rule is available development or through changes in the SSA report, which provides a on the Internet at http:// habitat structure due to vegetative thorough description of the species’ www.regulations.gov and http:// succession. overall viability. We generally defined www.fws.gov/midwest/endangered/ Peer review and public comment. A viability as the ability of the species to reptiles/eama/index.html. Comments Species Status Assessment (SSA) team maintain self-sustaining populations and materials we received, as well as prepared an SSA report (Szymanski et over the long term. We used the supporting documentation we used in al. 2016) for the eastern massasauga conservation biology principles of preparing this rule, are available for rattlesnake. The SSA team was resiliency, representation, and public inspection at http:// composed of Service biologists, in redundancy in our analysis. Briefly, www.regulations.gov or by appointment, consultation with other species experts. resiliency is the ability of the species to during normal business hours at: U.S. The SSA represents a compilation of the withstand environmental stochasticity Fish and Wildlife Service, Chicago best available scientific and commercial (unpredictable fluctuations in Ecological Services Field Office, 230 data concerning the biological status of environmental conditions (for example, South Dearborn, Suite 2938, Chicago, IL the species, including the impacts of wet or dry, warm or cold years)); 60604; telephone 312–216–4720. past, present, and future factors (both redundancy is the ability of the species FOR FURTHER INFORMATION CONTACT: negative and beneficial) affecting the to withstand catastrophic events (for Louise Clemency, Field Supervisor, U.S. eastern massasauga rattlesnake. We example, droughts, hurricanes); and Fish and Wildlife Service, Chicago sought comments on the SSA from representation is the ability of the Ecological Services Field Office, 230 independent specialists to ensure that species to adapt over time to long-term

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changes in the environment (for and ecological processes that maintain structure our analysis of viability with example, climate changes). In general, suitable habitat, and connectivity among regards to representation. the more redundant, representative, and these microhabitats. In the SSA report, Species’ Current Condition resilient a species is, the more likely it a self-sustaining population of eastern is to sustain populations over time, even massasauga rattlesnakes is defined as The documented historical range of under changing environmental one that is demographically, genetically, the eastern massasauga rattlesnake conditions. Using these principles, we and physiologically robust (a population included sections of western New York, considered the eastern massasauga with 50 or more adult females and a western Pennsylvania, southeastern rattlesnake’s needs at the individual, stable or increasing growth rate), with a Ontario, the upper and lower peninsulas population, and species scales. We also high level of persistence (a probability of Michigan, the northern two-thirds of identified the beneficial factors and of persistence greater than 0.9) given its Ohio and Indiana, the northern three- stressors influencing the species’ habitat conditions and the risk or quarters of Illinois, the southern half of viability. We considered the degree to beneficial factors operating on it. Wisconsin, extreme southeast which the species’ ecological needs are We relied on a population-specific Minnesota, east-central Missouri, and met both currently and as can be model developed by Faust et al. (2011, the eastern third of Iowa. The limits of reliably forecasted into the future, and entire) (hereafter referred to as the Faust the current range of the species we assessed the consequences of any model) to assess the health of resemble the boundaries of its historical unmet needs as they relate to species populations across the eastern range; however, the geographic viability. In this section, we summarize massasauga rattlesnake’s range. Faust distribution of extant localities has been the conclusions of the SSA, which can and colleagues developed a generic, restricted by the loss of populations be accessed in the SSA report at http:// baseline model for a hypothetical, from much of the area within the www.fws.gov/midwest/Endangered/ and healthy (growing) eastern massasauga boundaries of that range. As a result of at http://www.regulations.gov under rattlesnake population. Using this the stressors acting on eastern Docket No. FWS–R3–ES–2015–0145. baseline model and site-specific massasauga rattlesnake populations, the For survival and reproduction at the information, including population size resiliency of the eastern massasauga individual level, the eastern massasauga estimate, stressors operating at the site, rattlesnake across its range and within rattlesnake requires appropriate habitat, and potential future management each of the three analysis units has which varies depending on the season changes that might address those declined from its historically known and its life stage (see Background stressors, the Faust model forecasted the condition. Rangewide, there are 558 section of the proposed listing rule at 80 future condition of 57 eastern known historical eastern massasauga FR 58688, September 30, 2015). During massasauga rattlesnake populations over rattlesnake populations, of which 263 the winter (generally October through three different time spans (10, 25, and are known to still be extant, 211 are March), they occupy hibernacula, such 50 years) (for more details on the Faust likely extirpated or known extirpated, as crayfish burrows. Hydrology at model, see pp. 4–6 in the SSA report). and 84 are of unknown status. For the eastern massasauga rattlesnake sites is We extrapolated the Faust model results purposes of our assessment, we important in maintaining conditions and supplemental information gathered considered all populations with extant with high enough water levels to since 2011 to forecast the future or unknown statuses to be currently support the survival of hibernating conditions of the other (non-modeled; extant (referred to as presumed extant, eastern massasauga rattlesnakes. During n = 290) eastern massasauga rattlesnake n = 347). Of those 347 populations their active season (after they emerge populations. presumed extant, 40 percent (n = 139) from hibernacula), they require sparse At the species level, the eastern are likely quasi-extirpated (have 25 or canopy cover and sunny areas massasauga rattlesnake requires fewer adult females, which was (intermixed with shaded areas) for multiple (redundant), self-sustaining considered by the Faust model to be too thermoregulation (basking and retreat (resilient) populations distributed across small to be viable (see the SSA report, sites), abundant prey (foraging sites), areas of genetic and ecological diversity pp. 46–47, for details)). and the ability to escape predators (representative) to be sustainable over The rangewide number of presumed (retreat sites). Habitat structure, the long term. Using the literature on extant populations has declined from including early successional stage and distribution of genetic diversity across the number that was known historically low canopy cover, appears to be more the range of this species, we identified by 38 percent (and 24 percent of the important for eastern massasauga three geographic ‘‘analysis units’’ presumed extant populations have rattlesnake habitat than plant corresponding to ‘‘clumped’’ genetic unknown statuses). Of those community composition or soil type. variation patterns across the eastern populations presumed extant, 139 (40 Maintaining such habitat structure may massasauga rattlesnake populations (see percent) are presumed to be quasi- require periodic management of most Figure 1, below). A reasonable extirpated while 105 (30 percent) are habitat types occupied by the eastern conclusion from the composite of presumed to be demographically, massasauga rattlesnake. genetic studies that exist (Gibbs et al. genetically, and physiologically robust At the population level, the eastern 1997, entire; Andre 2003, entire; (see Table 1, below). Of these presumed massasauga rattlesnake requires Chiucchi and Gibbs 2010, entire; Ray et demographically, genetically, and sufficient population size, population al. 2013, entire) is that there are broad- physiologically robust populations, 19 growth, survivorship (the number of scale genetic differences across the (0.5 percent of the presumed extant individuals that survive over time), range of the eastern massasauga populations) are presumed to have recruitment (adding individuals to the rattlesnake, and within these broad conditions (stressors affecting the population through birth or units, there is genetic diversity among species at those populations are immigration), and population structure populations comprising the broad units. nonexistent or of low impact) suitable (the number and age classes of both Thus, we interpret these genetic for maintaining populations over time sexes) to be sustainable over the long variation patterns to represent areas of and, thus, are self-sustaining. The term. Populations also require a unique adaptive diversity. We greatest declines in resiliency occurred sufficient quantity of high-quality subsequently use these analysis units in the western analysis unit, where only microhabitats with intact hydrological (western, central, and eastern) to 20 populations are presumed extant,

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and, of these, only 1 population is a lesser degree, in the central and and 6 populations, respectively, are presumed to be self-sustaining. Loss of eastern analysis units, where only 23 presumed to be self-sustaining. resiliency has also occurred, although to

TABLE 1—THE NUMBER OF POPULATIONS BY STATUS RANGEWIDE [DGP = demographically, genetically, and physiologically]

Number of Percentage Status populations of presumed rangewide extant populations

Presumed Extant ...... 347 ...... Quasi-extirpated ...... 139 40 DGP robust ...... 105 30 Self-sustaining ...... 19 0.5

The degree of representation, as occurrence (as measured by a reduction comparison among years. The reasons measured by spatial extent of in area) rangewide (see Table 2, below). for this are twofold: (1) The calculations occurrence (a measurement of the This loss has not been uniform, with the are done at the county, rather than the spatial spread of the areas currently western analysis unit encompassing population, level; and (2) if at least one occupied by a species), across the range most of this decline (70 percent population was projected to be extant, of the eastern massasauga rattlesnake reduction in extent of occurrence in the the entire county was included in the has declined, as illustrated by the higher western analysis unit). However, losses analysis, even if other populations in proportion of populations lost in the of 33 percent and 26 percent of the the county were projected to be southern and western part of the range extent of occurrence in the central extirpated. Assuming that the loss of and by the loss of area occupied within analysis unit and eastern analysis unit, extent of occurrence equates to loss of the analysis units (see Figure 1, below; respectively, are notable as well. The adaptive diversity, the degree of see also pp. 52–55 in the SSA report). results are not a true measure of area representation of the eastern massasauga Overall, there has been more than a 41 occupied by the species, but rather a rattlesnake has declined since historical percent reduction of extent of coarse evaluation to make relative conditions.

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TABLE 2—THE PERCENT REDUCTION are underwater. The water in the by intensity, with D1 being the least IN EXTENT OF OCCURRENCE FROM hibernacula protects the eastern intense drought and D4 being the most HISTORICAL TO PRESENT DAY massasauga rattlesnake from intense drought. For the eastern dehydration and freezing, and, massasauga rattlesnake, the risk of unit- Percent therefore, dropping water levels in the wide extirpation due to a catastrophic Analysis unit reduction winter leaves the snakes vulnerable to drought varies by analysis unit and by both (Kingsbury 2002, p. 38; Moore and the level of drought considered. Experts Western ...... 70 Gillingham 2006, p. 750; Smith 2009, p. believe drought intensities of magnitude Central ...... 33 5). Because individual eastern D2 or higher are likely to make the Eastern ...... 26 massasauga rattlesnakes often return to species more vulnerable to overwinter Rangewide ...... 41 the same hibernacula year after year, mortality and cause catastrophic dropping water levels in hibernacula impacts to eastern massasauga The redundancy of the eastern could potentially decimate an entire rattlesnake populations. In the central massasauga rattlesnake has also population if the majority of individuals and eastern analysis units, the annual declined since historical conditions. We in that population hibernate in the same frequency rate for a D3 or D4 drought is evaluated the effects of potential area. zero, so there is little to no risk of unit- catastrophic drought events on the We assessed the vulnerability of unit- wide extirpation regardless of how eastern massasauga rattlesnake. Extreme wide extirpation due to varying drought broadly dispersed the species is within fluctuations in the water table may intensities, as summarized below (for a the unit. In the eastern analysis unit, the negatively affect body condition for the detailed description of the analysis, see annual frequency rate for a D2 drought following active season, cause early the SSA report, pp. 55–60, 81–82). The is also zero. Portions of the central emergence, or cause direct mortality Drought Monitor (a weekly map of analysis unit are at risk of a D2-level (Harvey and Weatherhead 2006, p. 71; drought conditions that is produced catastrophic drought; populations in the Smith 2009, pp. vii, 33, 38–39). Changes jointly by the National Oceanic and southern portion of the central analysis in water levels under certain Atmospheric Administration, the U.S. unit and scattered portions in the north circumstances can cause mortality to Department of Agriculture, and the are at risk from such a drought. In the individuals, particularly during National Drought Mitigation Center western analysis unit, the risk of unit- hibernation (Johnson et al. 2000, p. 26; (NDMC) at the University of Nebraska- wide extirpation based on the frequency Kingsbury 2002, p. 38), when the snakes Lincoln) classifies general drought areas of a D3 drought is low, but the risk of

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losing clusters of populations within the reducing the viability of that habitat components necessary for the western analysis unit is notable; 5 of the population. Habitat is also lost due to survival of the snakes. 8 population clusters are vulnerable to invasion of nonnative plant species, Because of the fear and negative a catastrophic drought. The probability dam construction, fire suppression, perception of snakes, many people have of unit-wide extirpation in the western manipulation of ground water levels, a low interest in snakes or their analysis unit is notably higher with D2 and other incompatible habitat conservation and consequently large frequency rates; 7 of the 8 clusters of modifications (Jellen 2005, p. 33). These numbers of snakes are deliberately populations are at risk of D2-level habitat losses continue even in publicly killed (Whitaker and Shine 2000, p. 121; catastrophic drought. Thus, the held areas protected from development. Alves et al. 2014, p. 2). Human-snake probability of losing most populations Vegetative succession is a major encounters frequently result in the within the western analysis unit due to contributor to habitat loss of the eastern death of the snake (Whitaker and Shine a catastrophic drought is high (0.82 massasauga rattlesnake (Johnson and 2000, pp. 125–126). Given the species’ probability of unit-wide extirpation). Breisch 1993, pp. 50–53; Reinert and site fidelity and ease of capture once Buskar 1992, pp. 56–58). The open located, the eastern massasauga Assessment of Threats and vegetative structure, typical of eastern rattlesnake is particularly susceptible to Conservation Measures massasauga rattlesnake habitat, provides collection. Poaching and unauthorized The most prominent stressors the desirable thermoregulatory areas, collection of the eastern massasauga affecting the eastern massasauga increases prey densities by enhancing rattlesnake for the pet trade is a factor rattlesnake include habitat loss and the growth of sedges and grasses, and contributing to declines in this species fragmentation, especially through provides retreat sites. Degradation of (for example, Jellen 2005, p. 11; Baily et development and vegetative succession; eastern massasauga rattlesnake habitat al. 2011, p. 171). road mortality; hydrologic alteration typically happens through woody Assessing the occurrence of the (hydrologic drawdown) resulting in vegetation encroachment or the above-mentioned stressors, we found drought or artificial flooding; introduction of nonnative plant species. that 94 percent of the presumed extant persecution; collection; and mortality of These events alter the structure of the eastern massasauga rattlesnake individuals as a result of habitat habitat and make it unsuitable for the populations have at least one stressor management that includes post- eastern massasauga rattlesnake by (with some degree of impact on the emergent (after hibernation) prescribed reducing and eventually eliminating species) currently affecting the site. fire and mowing for habitat thermoregulatory and retreat areas. Fire Habitat loss or modification is the most management. Habitat loss includes suppression has promoted vegetative commonly occurring stressor (see Figure direct habitat destruction of native land succession and led to the widespread 2, below). Some form of habitat loss or types (for example, grassland, swamp, loss of open canopy habitats through modification is occurring at 55 percent fen, bog, wet prairie, sedge meadow, succession (Kingsbury 2002, p. 37). of the sites; 3 percent of these sites are marshland, peatland, floodplain forest, Alteration in habitat structure and at risk of total habitat loss (all habitat at coniferous forest) due to conversion to quality can also affect eastern the site being destroyed or becoming agricultural land, development, and massasauga rattlesnakes by reducing the unusable by the species). Fragmentation infrastructure associated with forage for the species’ prey base is the second most common factor (49 development (roads, bridges). Because (Kingsbury 2002, p. 37). percent of sites), and unmanaged eastern massasauga rattlesnake habitat Roads, bridges, and other structures vegetative succession is the third most varies seasonally and also varies over its constructed in eastern massasauga common factor (31 percent of sites). range, the destruction of parts of a rattlesnake habitat fragment the snakes’ Among the other stressors, road population’s habitat (for example, habitat and impact the species both mortality occurs at 20 percent, hibernacula or gestational sites) may through direct mortality as snakes are collection or persecution at 17 percent, cause a negative effect to individual killed trying to cross these structures water fluctuation at 7 percent, and pre- snakes, thus reducing the numbers of (Shepard et al. 2008b, p. 6), as well as or post-emergent fire at less than 1 individuals in a population and, in turn, indirectly through the loss of access to percent of the sites.

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We also considered the magnitude of moderate habitat loss or modification. implementation of conservation actions. impact of the various stressors (see Our analysis shows that 84 percent of Furthermore, these multiple factors are Figure 3, below). The Faust model eastern massasauga rattlesnake not acting independently, but are acting indicates that the stressors most likely populations are impacted by at least one together, which can result in cumulative to push a population to quasi- high magnitude stressor, and 63 percent effects that lower the overall viability of extirpation within 25 years (high are affected by multiple high magnitude the species. For a description of the magnitude stressors) are late-stage stressors. These stressors are chronic methods used in this threats assessment, vegetative succession, high habitat and are expected to continue with a refer to pages 39–43 of the SSA report. fragmentation, moderate habitat similar magnitude of impact into the fragmentation, total habitat loss, and future, unless ameliorated by increased

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In addition to the above stressors, impacts from these factors. exist for one population in Ohio, one other factors may be affecting Additionally, this species is vulnerable population in Wisconsin, and individuals. Disease (whether new or to the effects of climate change through populations on State-owned lands in currently existing at low levels but increasing intensity of winter droughts Michigan. These CCAAs include actions increasing in prevalence) is another and increasing risk of summer floods, to mediate the stressors acting upon the emerging and potentially catastrophic particularly in the southwestern part of populations and provide management stressor to eastern massasauga its range (Pomara et al., undated; prescriptions to perpetuate eastern rattlesnake populations. In the eastern Pomara et al. 2014, pp. 95–97). Thus, massasauga rattlesnakes on these sites. and Midwestern United States, the while we acknowledge and considered The Wisconsin Department of Natural eastern massasauga rattlesnake is that disease, road mortality, persecution Resources (DNR) developed a CCAA for specifically vulnerable to disease due to and collection, and climate changes are one population in Wisconsin. Through Ophidiomyces fungal infections (snake factors that affect the species, and which the agreement, existing savanna habitat fungal disease (SFD)). The emergence of may increase or exacerbate existing on State land, especially important to SFD has been recently documented in threats in the future, our viability gravid (pregnant) females, will be the eastern massasauga rattlesnake assessment does not include a managed to maintain and expand open (Allender et al. 2011, pp. 2383–2384) quantitative analysis of these stressors. canopy habitat, restore additional and many other reptiles (Cheatwood et The eastern massasauga rattlesnake is savanna habitat, and enhance al. 2003, pp. 333–334; Clark et al. 2011, State-listed as endangered in Iowa, connectivity between habitat areas. In p. 890; Pare´ et al. 2003, pp. 12–13; Illinois, Indiana, New York, Ohio, Ohio, a CCAA for a State Nature Rajeev et al. 2009, pp. 1265–1267; Sigler Pennsylvania, and Wisconsin, and is Preserve population addresses threats et al. 2013, pp. 3343–3344; Sleeman listed as endangered in Ontario. In from habitat loss from the prevalence of 2013, p. 1), and is concerning because Michigan, the species is listed as late-stage successional vegetation, the of its broad geographic and taxonomic ‘‘special concern,’’ and a Director of threat of fire both pre- and post- distributions. However, we did not have Natural Resources Order (No. DFI– emergence of eastern massasauga sufficient information on the emergence 166.98) prohibits take except by permit. rattlesnakes, and limited connectivity and future spread of SFD or other Of the 263 sites with extant eastern through habitat fragmentation. diseases to reliably model this stressor massasauga populations rangewide, 62 The State of Michigan developed a for forecasting future conditions for the percent (164) occur on land (public and CCAA that will provide for management rattlesnake. Our quantitative modeling private) that is considered protected of eastern massasauga rattlesnakes on analysis also does not consider two from development; development at the State-owned lands. This area includes other prominent stressors, road other 38 percent of sites may result in 33 known eastern massasauga mortality and persecution and loss or fragmentation of habitat. Signed occurrences, which represents collection, due to a lack of specific candidate conservation agreements with approximately 34 percent of the known information on the magnitude of assurances (CCAAs) with the Service extant occurrences within the State and

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10 percent rangewide. In addition, other likely to persist over the next 10, 25, populations are likely to persist in all eastern massasauga rattlesnake sites on and 50 years, and extrapolated those three analysis units; however, the county- or municipally owned land, as proportions to the remaining presumed distribution of the range is predicted to well as on privately owned land, could extant populations to forecast the contract northeasterly, and the be included in the CCAA through number of self-sustaining populations geographic area occupied will decline Certificates of Inclusion issued by the likely to persist at the future time scales. within each analysis unit over time. The Michigan Department of Natural We then predicted the change in results project an 80 percent reduction Resources (MI DNR) prior to the representation and redundancy. The of the area occupied by the eastern effective date of listing (see DATES, most pertinent results are summarized massasauga rattlesnake rangewide by above). The CCAA includes below. For the full results for all time year 50, with the western analysis unit management strategies with periods, refer to pages 61–76 of the SSA comprising most of the decline (91 conservation measures designed to report. percent reduction within the unit). benefit the eastern massasauga The projected future resiliency (the These projected declines in extent of rattlesnake; these management strategies number of self-sustaining populations) occurrence across the species’ range and will be implemented on approximately varies across the eastern massasauga within the analysis units suggest that 136,311 acres (55,263 hectares) of State- rattlesnake’s range. In the western loss of adaptive diversity is likely to owned land. Many of these management analysis unit, 83 percent of the modeled occur. actions are ongoing, but we do not have populations are projected to have a We assessed the ability of eastern site-specific data on these management declining trajectory. Furthermore, 94 massasauga rattlesnake populations to actions to include them in our analysis percent of the populations have a low withstand catastrophic events in the SSA. Nonetheless, we determine probability of persistence (the (redundancy) by predicting the number that the management actions proposed probability of remaining above the of self-sustaining populations in each will address some of the threats (for quasi-extirpated threshold of 25 adult analysis unit and the spatial dispersion example, habitat loss, vegetative females is less than 90 percent) by year of those populations relative to future succession) impacting populations on 25, and, thus, the number of forecasted drought risk. State lands in Michigan. populations likely to be extant declines The projected future redundancy (the We did not assess the CCAAs under over time. By year 50, 18 of the 20 number and spatial dispersion of self- our Policy for Evaluation of presumed extant populations are sustaining populations) across the Conservation Efforts When Making projected to be extirpated (no eastern massasauga rattlesnake’s range Listing Decisions (PECE policy) (68 FR individuals remain) or quasi-extirpated, varies. In the western analysis unit, the 15100; March 28, 2003) because the with only 1 population projected to be risk of analysis-unit-wide extirpations plans cover only a small part of the self-sustaining. The resiliency of the from either a D2 or D3 catastrophic range of the species, and the western analysis unit is forecasted to drought is high, given the low number conservation measures in the plans will decline over time. The situation is of populations forecasted to be extant. not change the overall biological status similar in the central and eastern Coupling this with a likely concurrent of the species. analysis units, but to a lesser degree. In decline in population clusters (reduced We have information that at an the central analysis unit, 70 percent of spatial dispersion), the risk of analysis- additional 22 sites (that are not covered the modeled populations are projected unit-wide extirpation is likely even by a CCAA), habitat restoration or to have a declining trajectory and 78 higher. Thus, the level of redundancy in management, or both, is occurring; percent a low probability of persistence, the western analysis unit is projected to however, we do not have enough and thus, by year 50, 180 of the 256 decline into the future. information for these sites to know if presumed extant populations are Conversely, in the eastern analysis habitat management has mediated the projected to be extirpated or quasi- unit, there is little to no risk of a D2- or current stressors acting upon the extirpated, and 47 populations to be D3-level drought, and consequently the populations. The Faust model, however, self-sustaining. In the eastern analysis probability of unit-wide extirpation due did include these kinds of activities in unit, 83 percent of the modeled to a catastrophic drought is very low. the projections of trends, and, thus, our populations are projected to have a Thus, redundancy, from a catastrophic future condition analyses are based on declining trajectory and 92 percent of drought perspective, is not expected to the assumption that ongoing restoration the populations are projected to have a decline over time in the eastern analysis would continue into the future. Lastly, low probability of persistence, and, unit. an additional 18 populations have thus, by year 50, 65 of the 71 presumed Similarly, in the central analysis unit, conservation plans in place. Although extant populations are projected to be there is little to no risk of a D3 these plans are intended to manage for extirpated or quasi-extirpated, and 6 to catastrophic drought. The southern and the eastern massasauga rattlesnake, be self-sustaining. Rangewide, 54 (16 northern portions of the central analysis sufficient site-specific information is not percent) of the 347 populations that are unit, however, are at risk of a D2-level available to assess whether these currently presumed to be extant are catastrophic drought. Losses of restoration or management activities are projected to be self-sustaining by year populations in these areas may lead to currently ameliorating the stressors 50. portions of the central analysis unit acting upon the population. Thus, we We calculated the future extent of being extirpated and will also increase were unable to include the potential occurrence (representation) for the 57 the probability of analysis-unit-wide beneficial impacts into our quantitative modeled populations (Faust model) and extirpation. However, the risk of analyses. for the populations forecasted to persist analysis-unit-wide extirpation will at years 10, 25, and 50 by using the likely remain low given the presumed Species’ Projected Future Condition counties occupied by populations to persistence of multiple populations To assess the future resiliency, evaluate the proportions of the range scattered throughout low drought risk representation, and redundancy of the falling within each analysis unit and the areas. Thus, from a drought perspective, eastern massasauga rattlesnake, we used change in spatial distribution within the level of redundancy is not likely to the Faust model results to predict the each analysis unit. Our results indicate be noticeably reduced in the central number of self-sustaining populations that eastern massasauga rattlesnake analysis unit (see Figure 4.3 (p. 60) in

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the SSA report for a detailed map). A of the SSA report are slightly different habitats until May 15 in ways that do caveat to this conclusion, however, is from those in the first version that was not violate section 9 of the Act. that the forecasted decline in extent of used for the proposed rule. None of the Our Response: We agree that the best occurrence suggests our data are too new information we received changed available information suggests that, coarse to tease out whether the our determination in this final rule that upon emerging from hibernation, most forecasted decline in populations will the eastern massasauga rattlesnake is a eastern massasauga rattlesnakes do lead to substantial losses in spatial threatened species. remain lethargic, and stay in the vicinity distribution, and, thus, the risk of of their burrows (usually located in Summary of Comments and analysis-unit-wide extirpation might be wetlands) for up to several weeks, and Recommendations higher than predicted. Therefore, the during that time they are especially future trend in the level of redundancy In the proposed rule published on vulnerable to risks from predation, in the central analysis unit is less clear September 30, 2015 (80 FR 58688), we prescribed fire, or other sources of than for either the western analysis unit requested that all interested parties mortality. Prior to emergence from or the eastern analysis unit. submit written comments on the hibernation, when eastern massasauga Given the loss of populations to date, proposal by November 30, 2015. We rattlesnakes still have some protection portions of the eastern massasauga also contacted appropriate Federal and in the confines of the burrows in which rattlesnake’s range are in imminent risk State agencies, scientific experts and they hibernate, they are relatively of extirpation in the near term. organizations, and other interested protected from sources of mortality that Specifically, our analysis suggests there parties and invited them to comment on would take place on the surface. Thus, is a high risk of extirpation of the the proposal. Newspaper notices risk of mortality caused by prescribed western analysis unit and of southern inviting general public comment were fire is greatest when snakes are above portions of the central and eastern published in USA Today. We did not ground (Durbian 2006, pp. 329–330; analysis units within 10 to 25 years. receive any requests for a public Cross et al. 2015, pp. 346–347). Many Although self-sustaining populations hearing. All substantive information populations of eastern massasauga are expected to persist, loss of other provided during the comment period rattlesnakes are small, and in such populations within the central and has either been incorporated directly populations, loss of only a few eastern analysis units are expected to into this final determination or is individuals can have significant impacts continue as well, and, thus, those addressed below. (Seigel and Sheil 1999, p. 20), and populations are at risk of extirpation in prescribed fire was one of the most Peer Reviewer Comments the future. These losses have led to prominent stressors we identified in the reductions in resiliency and redundancy In accordance with our peer review SSA for the eastern massasauga across the range and may lead to policy published on July 1, 1994 (59 FR rattlesnake. irreplaceable loss of adaptive diversity 34270), we solicited review of the SSA Unfortunately, within the range of across the range of the eastern report from 32 knowledgeable this species, unpredictable late winter massasauga rattlesnake, thereby leaving individuals with scientific expertise that or spring weather patterns, and resulting the eastern massasauga rattlesnake less included familiarity with eastern ground conditions (such as humidity, able to adapt to a changing environment massasauga rattlesnake and its habitat, snow cover, prevailing winds), provide into the future. Thus, the viability of the biological needs, and threats. We a number of constraints to land eastern massasauga rattlesnake has received responses from 21 of the peer managers who need to implement declined and is projected to continue to reviewers. prescribed fires to maintain habitats. decline over the next 50 years. We reviewed all comments we Thus, we are also aware that a challenge The reader is directed to the SSA received from the peer reviewers for to managing occupied eastern report for a more detailed discussion of substantive issues and new information massasauga habitat with prescribed fire our evaluation of the biological status of regarding the eastern massasauga is determining the best time to apply the eastern massasauga rattlesnake and rattlesnake. Peer reviewer comments are fire without risking mortality. At most the influences that may affect its addressed in an appendix to the SSA of the known sites within the range of continued existence. Our conclusions report, and in the SSA itself, as the eastern massasauga rattlesnake that are based upon the best available appropriate. were included in our analysis, scientific and commercial data. populations are small and vulnerable to Federal Agency Comments additive mortality (any mortality Summary of Changes From the (1) Comment: The U.S. Forest Service beyond that which would be expected Proposed Rule (Huron-Manistee National Forest) stated from predation or other natural factors), In preparing this final rule, we that there is a need to differentiate as could occur from poorly timed reviewed and fully considered between upland and lowland habitat in prescribed fire. While land managers comments from the public and peer regard to seasonal restrictions on often request ‘‘cutoff’’ dates before reviewers on the proposed rule. This prescribed burning within management which burns can be assumed to be safe, final rule incorporates minor changes to units of the Huron-Manistee National natural variation in weather cycles can our proposed listing based on the Forest where eastern massasauga affect the dates when snakes emerge comments we received, as discussed rattlesnakes occur. The Forest Service from hibernation, with fluctuations of 1 below in Summary of Comments and cited a conservation plan (Kingsbury to 3 weeks not being uncommon. In Recommendations, and newly available 2002) that stated that upon emerging addition to the conservation plan scientific data. The SSA report was from hibernation, most eastern (Kingsbury 2002, entire) provided by the updated based on additional data massasauga rattlesnakes are lethargic Forest Service, and that was also provided, primarily by State fish and and constrained by cool temperatures, reviewed in our SSA, we discussed wildlife agencies. These data allowed us and so remain in the vicinity of their emergence biology of eastern to refine site-specific information and wetland burrows through mid-May. massasauga rattlesnakes at the latitude improve our understanding of status for They also recommended that the of the Huron-Manistee National Forest several populations. Thus, the final Service provide a framework for with Dr. Bruce Kingsbury (2016, pers. numerical results in the second version allowing prescribed fire in upland comm.). Kingsbury shared additional

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observations of emerging eastern the Act. In addition, private and State and that the SSA represents the best massasauga rattlesnakes in northern land managers can work with the available information on the eastern Michigan since his 2002 conservation Service to develop plans and determine massasauga rattlesnake in their State. plan; he added that his observations if permits are appropriate to conduct Our Response: We thank the staffs of since 2002 now indicate that many recovery efforts. PBFC and WI DNR, as well as other State and county conservation agencies eastern massasauga rattlesnakes that Comments From States emerge from hibernation in central and and NGOs, for assisting us in compiling northern Michigan in April begin to (2) Comment: A State fish and the best available information on the disperse into adjacent habitats as early wildlife management agency current distribution and status of the as May 1. Because of this, Kingsbury (Pennsylvania Boat and Fish eastern massasauga rattlesnake cautioned against reliance on a firm Commission (PBFC)), a State advisory throughout its range and for providing calendar date as a rule by which to plan group (Pennsylvania Biological Survey), review of the SSA report. prescribed fires if unintentional and a private individual stated that the (5) Comment: A State fish and mortality is to be avoided. Instead, he eastern massasauga rattlesnake has wildlife management agency (PBFC) and urged land managers to use predictive experienced a large range reduction in the Western Pennsylvania Conservancy models to help forecast when eastern Pennsylvania, and current surveys (an NGO) commented that an Eastern massasauga rattlesnakes are most likely confirm that extant populations remain Massasauga Species Action Plan for to emerge from hibernacula in a given at only three sites in the State. They Pennsylvania was compiled in 2011, to region and year. We thus cannot provide further commented that the remaining prioritize and guide research and the framework requested by the Forest populations are isolated from one conservation actions at the State’s extant Service to conclude that use of another and subject to continued threats and presumed extant sites, and noted prescribed fire before May 15 will never of habitat alteration, persecution, and recent conservation and management result in ‘‘take’’ of the eastern illegal collecting. actions under that plan. A copy of the Our Response: We thank the massasauga rattlesnake. plan was provided. commenters for the detailed Our Response: We thank the Because the issue of using prescribed information. These data corroborate our commenters for providing a copy of the fire as a tool for maintaining suitable analysis. We considered the continued plan, and we incorporated actions habitat for eastern massasauga decline of the eastern massasauga outlined in the plan into our revised rattlesnakes is so important, but also rattlesnake in Pennsylvania, as well as SSA report. When the species is listed understandably controversial (due to the other States in the range of the eastern (see DATES, above), conservation and potential for additive mortality), the massasauga rattlesnake, in the SSA, and recovery planning will involve multiple Service funded a study (from 2010 agree that the best available information stakeholders. In addition, relatively new through 2015) of rangewide phenology indicates that this species is declining tools (such as spatially explicit habitat (relation between climate and periodic in Pennsylvania. Based on the status models or collaborative processes such biological phenomena) of the species to information throughout the species’ as Landscape Conservation Design) are better understand the factors range and continuing threats to the available to plan recovery actions at influencing ingress and egress from species, we determined that the eastern landscape scales, and to involve hibernation. Preliminary results of that massasauga rattlesnake is likely to multiple stakeholders in the planning study indicate that emergence of eastern become in danger of extinction process. After listing takes effect (see massasauga rattlesnakes from throughout its range within the DATES, above), the Service will hibernation at sites throughout the range foreseeable future, and thus are listing it continue to work closely with State is predictable based on rising subsurface as a threatened species. conservation agencies, NGOs, and other soil temperatures (King 2016, pers. (3) Comment: A State fish and willing partners to determine practical comm.). In addition, regional weather wildlife management agency (PBFC), a and comprehensive conservation stations maintained by the National State advisory group (Pennsylvania actions for the eastern massasauga Oceanic and Atmospheric Biological Survey), and several private rattlesnake. Administration (NOAA) monitor soil individuals commented that listing (6) Comment: A State fish and temperatures at the strata crucial for would benefit the eastern massasauga wildlife management agency (PBFC) predicting emergence. Near real-time rattlesnake by encouraging recovery stated that the loss of resiliency and data generated at these weather stations planning, surveys, outreach and redundancy across the species’ range also are accessible to the public, and education to the public, and other within Pennsylvania leaves the eastern when stations are located near extant rangewide conservation efforts. massasauga rattlesnake vulnerable and populations of the eastern massasauga Our Response: After listing the with little adaptability to future changes rattlesnake, these could be used by land species, the Service will continue to in its environment. In addition, this managers to determine whether work closely with State conservation commenter stated that, given the small emergence from hibernation is near, and agencies, nongovernmental part of the eastern massasauga thus whether burns should be avoided organizations (NGOs), and other willing rattlesnake’s range that is represented in for the remainder of the active season. partners throughout the range of the Pennsylvania, the conservation actions As further analyses are completed and species to determine practical and undertaken within the State at these the results of the study are made comprehensive actions and outreach to vulnerable, isolated sites are projected available, we will work cooperatively conserve and recover the eastern to have little impact on the overall with interested land managers to massasauga rattlesnake. persistence of the species without a incorporate the results into useful burn (4) Comment: Two State fish and more comprehensive, regional plans. Federal land management wildlife management agencies (PBFC approach. agencies, such as the Forest Service, that and Wisconsin Department of Natural Our Response: We agree that loss of use prescribed fire to manage habitats Resources (WI DNR)) commented that redundancy and loss of resiliency across occupied by the eastern massasauga the Service incorporated data and the range of the eastern massasauga rattlesnake should consult with the comments provided by herpetologists rattlesnake are of concern. As stated in Service as provided by section 7(a)(2) of from the commenter’s staff on the SSA, the SSA report for the eastern

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massasauga rattlesnake, we used the persecution, unauthorized collection, prohibited under section 9 of the Act genetic haplotypes identified by Ray et and trade; thus, designating critical unless permitted under section al. (2013) as geographic analysis units. habitat for the species is not prudent. 10(a)(1)(B) or section 7(a)(2) of the Act. We found variation in resiliency and Designation of critical habitat requires We will work with WI DNR to clarify redundancy within and between the the publication of detailed maps and a our respective roles and responsibilities three analysis units (western analysis specific narrative description of critical with respect to incidental take. unit, central analysis unit, and eastern habitat in the Federal Register, and (12) Comment: The Minnesota analysis unit). While resiliency was these in turn often become available Department of Natural Resources (MN lowest in the western analysis unit, through other media. We have DNR) confirmed that there are no there was notably low resiliency in the determined that the publication of maps verified records of eastern massasauga central analysis unit and eastern and descriptions outlining the locations rattlesnakes from within the State in the analysis unit, especially along the of this species would further facilitate past 50 years. They stated that because southern edges, which includes unauthorized collection and trade, as of this lack of recent occurrence, they populations in Pennsylvania (in the collectors would know the exact may request that the Service remove eastern analysis unit). Following listing locations where eastern massasauga Minnesota from the eastern massasauga (see DATES, above), we will continue to rattlesnakes occur. Due to the threat of rattlesnake’s current range. work with our partners in State agencies unauthorized collection and trade, a Our Response: During our evaluation as well as with local agencies, NGOs, number of biologists working for State of the species, we consulted with staff and other interested parties to and local conservation agencies that from the MN DNR to assess the best implement conservation measures for manage populations of eastern available information on the species’ this species. We agree that, whenever massasauga rattlesnakes also expressed occurrence in the State. We thank the possible, conservation measures to the Service serious concerns with commenter for providing additional undertaken as part of comprehensive publishing maps and boundary information specific to surveys that led regional plans have more value than descriptions of occupied habitat areas to historical populations in Minnesota actions taken on a site-by-site basis. In that could be associated with critical being considered likely extirpated. We addition to recovery planning and other habitat designation (Redmer 2015, pers. will consider a range of recovery actions traditional tools, Landscape comm.). following listing, and will work with Conservation Design (LCD) may be an (9) Comment: A State fish and local and State partners to determine option to help catalyze such regional wildlife management agency (WI DNR) and implement actions that would have planning approaches for the eastern commented that they will continue to the most benefit to the species. We massasauga rattlesnake. encourage management of known concur that the best available (7) Comment: A State fish and eastern massasauga rattlesnake sites to information suggests that this species is wildlife management agency (PBFC) address succession and other habitat likely extirpated from Minnesota, and stated that, because of the species’ concerns, and will continue to submit thus Minnesota is not considered part of increasing isolation, habitat loss, and data and work collaboratively with the the current range. However, the species population decline, potential changes to Service on eastern massasauga receives the protections of the Act the landscape and site conditions would rattlesnake conservation. wherever found; thus, if the species have a high risk of adversely affecting Our Response: We thank WI DNR for does occur in Minnesota in the future, Pennsylvania’s eastern massasauga their shared interest in conservation it would be protected there. rattlesnake population. actions for the eastern massasauga (13) Comment: The MI DNR Our Response: We agree that most of rattlesnake, and for stating their interest recommended that, to address public these factors present risks to the eastern in continuing our partnership for safety concerns, the Service develop a massasauga rattlesnake, and these conserving this species following rule under section 4(d) of the Act (a factors were considered in the SSA for listing. ‘‘4(d) rule’’) that would allow people to the species. One exception was (10) Comment: WI DNR provided move the snakes from ‘‘high risk isolation, which was not evaluated as a updated data on the status of the eastern environments (for example, backyards, direct stressor. While genetic isolation massasauga rattlesnakes and their state campgrounds, schools) to areas may operate as a stressor, our review of conservation actions at two specific with low risk.’’ They further commented the literature for the SSA provides sites. that such a 4(d) rule would reduce evidence that some high degree of Our Response: We thank WI DNR for persecution of the snakes. genetic isolation in this species may be their willingness to coordinate, for Our Response: We understand that natural and pre-date European providing relevant data while we were the MI DNR receives several calls each settlement; thus, isolation in and of preparing the SSA, and for providing year reporting an eastern massasauga itself is not necessarily a stressor to the additional information in their rattlesnake in or near a human dwelling species. comments. We have incorporated that and requesting assistance to remove it. (8) Comment: Several commenters, additional information into our revised A 4(d) rule, however, is not necessary to including a State fish and wildlife SSA report. provide for the relocation of snakes from management agency (WI DNR), (11) Comment: WI DNR commented areas where people may be at risk of provided statements supporting our that an additional conservation measure bodily harm. Such an action, if done on determination that designating critical for the eastern massasauga rattlesnake in a good faith belief to protect a person habitat for the eastern massasauga Wisconsin includes a broad incidental from bodily harm, is already provided rattlesnake is not prudent due to the take permit/authorization for for under the Act without a 4(d) rule; increased risks to the species if site management work conducted within see 16 U.S.C. 1540(a)(3) and 1540(b)(3). locations are made publicly available. massasauga habitat (http://dnr.wi.gov/ This provision of the Act applies to all Our Response: In the Critical Habitat topic/ERReview/ItGrasslands.html). listed species. section of this final rule, we have Our Response: When the listing We also note that non-harmful actions determined that the designation of becomes effective (see DATES, above), to encourage eastern massasauga critical habitat would increase the threat any incidental take of eastern rattlesnakes to leave, stay off, or keep to eastern massasauga rattlesnakes from massasauga rattlesnakes will be out of areas with frequent human use,

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including a residence, yard, structure, bodily harm. Short-distance conservation needs of proposed or sidewalk, road, trail, foot path, or translocation (moving from one location candidate species, or species likely to campground, would not result in take to another) of venomous snakes is a become candidates, before they become and thus will not be prohibited. For common method used to reduce or listed as endangered or threatened. example, homeowners may use a broom mitigate snake-human conflicts. In one Landowners voluntarily commit to or pole to move an eastern massasauga recent study, eastern massasauga conservation actions that will help rattlesnake away from their property. rattlesnakes relocated 200 meters (656 stabilize or restore the species with the When circumstances create an feet) from the capture point did not goal that if all other necessary imminent threat to human safety, all exhibit abnormal movement or basking landowners did the same, listing would forms of take of listed species (including behavior and did not return to the become unnecessary. These agreements harass, harm, pursue, hunt, shoot, capture site (Harvey et al. 2014). encourage conservation actions for wound, kill, trap, capture, or collect) are Because the eastern massasauga species that are candidates for listing or allowed to safeguard human safety. The rattlesnake is a venomous species, we are likely to become candidates. Act’s implementing regulations (50 CFR advise due caution and encourage Although a single property owner’s part 17) include a take exemption anyone wishing to move a snake to activities may not eliminate the need to pursuant to the defense of human life contact an appropriate State or local list, conservation, if conducted by (for threatened species, see 50 CFR agency for professional expertise in enough property owners throughout the 17.31, which incorporates provisions set handling rattlesnakes. In addition, the species’ range, can eliminate the need to forth at 50 CFR 17.21(c)(2)): ‘‘any person State or local landowner may have other list. The agreements provide may take endangered [or threatened] legal requirements that apply to landowners with assurances that their wildlife in defense of his own life or the handling wildlife. Therefore, when on conservation efforts will not result in lives of others.’’) The regulations at 50 public lands, we encourage contacting future regulatory obligations in excess of CFR 17.21(c)(4) require that any person the land manager to address the those they agree to at the time they enter taking, including killing, listed wildlife situation whenever feasible. However, into the agreement. in defense of human life under this anyone may take necessary action at any After publication of the proposed rule exception must notify our headquarters time to protect one’s self or another to list the eastern massasauga Office of Law Enforcement, at the person from bodily harm. rattlesnake as a threatened species, the address provided at 50 CFR 2.1(b), in (14) Comment: MI DNR provided a State of Michigan submitted to the writing, within 5 days. In addition, Michigan Natural Features Inventory Service a CCAA that would provide for section 11 of the Act enumerates the (MNFI) report with the most current management of eastern massasauga penalties and enforcement of the Act. In eastern massasauga rattlesnake data for rattlesnakes on State-owned lands. The regard to civil penalties, section 11(a)(3) the State. term of the CCAA and permit is 25 Our Response: We thank MI DNR and of the Act states, ‘‘Notwithstanding any years. The CCAA includes management MNFI for compiling and providing this other provision of this [Act], no civil strategies with conservation measures additional information. MNFI is the penalty shall be imposed if it can be designed to benefit eastern massasauga organization responsible for maintaining shown by a preponderance of the rattlesnakes; these management the Michigan Natural Heritage Database, evidence that the defendant committed strategies will be implemented on which includes known historical an act based on a good faith belief that approximately 136,311 acres (55,263 records for species of concern, including hectares) of State-owned land. he was acting to protect himself or the eastern massasauga rattlesnake, in Management strategies beneficial to herself, a member of his or her family, Michigan. The database includes eastern massasauga rattlesnakes are or any other individual from bodily records for populations of extirpated, currently being implemented on many harm, from any endangered or likely extirpated, unknown, and extant sites on State-owned lands in Michigan, threatened species’’ (16 U.S.C. status. During preparation of the SSA and are ongoing. The CCAA describes a 1540(a)(3)). Section 11(b)(3) of the Act report, the Service worked closely with program of continuing existing contains similar language in regard to MNFI to ensure that the most current, management strategies beneficial to criminal violations (see 16 U.S.C. available information from the Michigan eastern massasauga rattlesnakes and 1540(b)(3)). Natural Heritage Database on the status reflects the current conditions analyzed Eastern massasauga rattlesnakes of the eastern massasauga rattlesnake in in the SSA. Existing conservation on generally hibernate in wetlands, rather Michigan was included in our analyses. State-owned lands in Michigan was than in places occupied by people. This included new records that the accounted for in the SSA; the CCAA However, in areas near wetlands or MNFI provided to us as late as does not provide detailed site-specific uplands with natural habitat, eastern September 2015, after we had developed information to alter that analysis. Thus, massasauga rattlesnakes occasionally the proposed listing rule. The report the CCAA does not alter the SSA results find their way into areas of high human compiled by MNFI was added to our or projected population trends. While use (for example, human-made records and used to further document the actions in the CCAA are expected to structures, backyards, or campgrounds). our decision. address some of the stressors on many If an eastern massasauga rattlesnake is (15) Comment: MI DNR noted, as was sites on State-owned lands in Michigan, encountered, it is best to not disturb it mentioned in the SSA report, that they the CCAA only covers a small part of and to walk away from it. However, in are in the final stages of completing a the species’ range; therefore, the areas of high human use, other CCAA for the eastern massasauga conservation measures did not affect the responses may be necessary to protect rattlesnake on MI DNR lands. They overall biological status of the species. people from bodily harm. Eastern requested that the Service consider how (16) Comment: MI DNR questioned massasauga rattlesnakes observed in Michigan’s CCAA will address threats to the Service’s use of three analysis units areas of human use may subsequently the eastern massasauga on MI DNR to assess the species’ current conditions conceal themselves as a natural defense lands in the final listing determination. in the SSA, and how use of those three mechanism and then later be Our Response: A CCAA is a formal units will affect recovery planning and, unexpectedly encountered at close agreement between the Service and one ultimately, delisting. MI DNR expressed range, presenting the possibility of or more parties to address the their opinion that recovery planning be

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based on the species’ range and not the and thus its conservation status is of allows flexibility for us to consider a three analysis units. concern there. range of recovery actions following Our Response: We identified and (18) Comment: NYDEC stated that the listing, and we will work with local and delineated the analysis units to assess two populations in the State occur on State partners to determine and the historical, current, and future lands under conservation protection: implement actions that have the most representation of the species. One is owned by a private conservation benefit to the species. organization, and the other is a State Representation is an indicator of the Public Comments ability of the species to respond to Wildlife Management Area. NYDEC physical (for example, habitat, climate) further commented that it has been (20) Comment: An NGO (the Western and biological (for example, new successful at managing for eastern Pennsylvania Conservancy (WPC)) diseases, predators, competitors) massasauga rattlesnakes at the State- commented that they continue to work changes in its environment. The intent owned site, and believes that under closely with PBFC on eastern of the analysis units is to capture the continued management, the species will massasauga rattlesnake conservation breadth of adaptive diversity (genotypic continue to thrive at that site. Thus, efforts, including implementation of the (genetic makeup) and phenotypic NYDEC encourages the Service to Eastern Massasauga Species Action (physical traits) diversity of the species). endorse active habitat management Plan. In 2009–2010, habitat management We evaluated available genetic and practices that promote habitat for the plans were developed for eight private ecological information to identify areas species. landowners in areas where eastern of unique or differing genotypic and Our Response: The efforts of States massasauga rattlesnakes are known to phenotypic diversity. We did not find and other partners to benefit the eastern occur. WPC has implemented some of any compelling ecological differences, massasauga rattlesnake are important, the management plans with the help of PBFC, the Pennsylvania Wildlife but did find strong evidence of genetic and we agree that habitat management Commission, and the Pennsylvania variation across the range. Data indicate activities to maintain appropriate Department of Conservation and Natural that the eastern massasauga rattlesnake vegetative structure for the eastern massasauga rattlesnake are crucial to its Resources, including habitat restoration shows high levels of genetic variation continued survival. However, certain activities funded by small foundation (populations can be genetically management activities (for example, grants over the past 5 years. distinguished from each other) at prescribed fire) are also known to be Our Response: Following listing (see regional and local scales. The synthesis important stressors to the species, DATES, above), we will continue to work of this genetic data supports delineating, especially where population sizes are with our partners in State agencies as on the basis of genetic differentiation, small or when timing of the well as with local agencies, NGOs, and the three broad regions identified by management action increases risk (for other interested parties to implement Ray et al. (2013, entire). Although example, just after snakes emerge from conservation measures for this species. several studies showed detectable hibernation). We will continue to work Existing efforts to conserve the species genetic differences among populations closely with our partners in State and or local planning documents, like those within these three broad areas, we did local agencies, NGOs, and any other mentioned by the commenter, will be not have sufficient information to parties interested in conserving this valuable in developing regional or delineate smaller-scale units. Thus, we species to investigate best management rangewide recovery efforts. assessed the distribution among and practices and the tradeoffs between (21) Comment: One commenter stated within these three geographic units to management and potential mortality to that it is difficult to achieve on-the- evaluate changes in eastern massasauga the rattlesnakes. ground conservation and restoration for rattlesnake representation from (19) Comment: NYDEC requested that the eastern massasauga rattlesnake and historical condition to the present and the Service include a 4(d) rule to that land protection efforts are slow and future. These analysis units were exempt some habitat management opportunities are limited. identified for purposes of evaluating practices, such as woody vegetation Our Response: Limited resources are representation in the SSA, and are not, removal, when conducted at a time and often a challenge in conservation. at this point, intended to represent scale that makes adverse impacts to the Following listing (see DATES, above), we recovery units as might be identified eastern massasauga rattlesnake unlikely. will continue to explore opportunities during recovery planning. Any future Our Response: We agree that active to partner with State and local recovery planning effort will use the habitat management for the eastern conservation agencies, NGOs, and other best available information to promote massasauga rattlesnake will be crucial to interested parties to leverage resources the conservation and survival of the long-term maintenance and recovery of and find cooperative solutions to such species. existing populations. However, we challenges for the eastern massasauga (17) Comment: The New York believe issuance of a 4(d) rule would not rattlesnake. Department of Environmental be required to allow such management (22) Comment: One commenter stated Conservation (NYDEC) commented that activities for two reasons. First, that not all factors that may contribute the species is listed as State endangered management actions may take place on to the decline of the species were fully in New York, and that due to the limited a case-by-case basis, and we would like explored in the SSA. In particular, the range and vulnerability of populations, to learn more about how to lessen the commenter noted that, while the the State does not anticipate delisting risk of eastern massasauga rattlesnake proposed rule acknowledged climate the species at any point in the future. mortality while still allowing change as a factor exacerbating the Our Response: We considered the appropriate habitat management to threats to this species, it did not provide current status of the eastern massasauga occur. Second, vegetation management a quantitative analysis of the impacts rattlesnake in New York, as well as actions that take place at certain times nor fully account for such uncertainty. other States in the range of the eastern of the year when the snakes are not Our Response: A recently published massasauga rattlesnake, in the SSA. We active (for example, during winter when climate change vulnerability analysis for agree that the best available information snakes are hibernating underground) the eastern massasauga rattlesnake indicates that only two populations of would not affect the species and, thus, (Pomara et al. 2015, entire) suggests that this species occur in New York State, do not require a 4(d) rule. The Act populations in the southwestern parts of

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the species’ range are extremely Our Response: Following listing of the Our Response: While the eastern vulnerable to climate change through eastern massasauga rattlesnake (see massasauga rattlesnake is a venomous increasing intensity of winter drought DATES, above), regulatory provisions of species, and we are aware that this is a and increasing risks of summer floods. the Act will take effect. For example, the reason some people may fear it, the Populations in the eastern and central actions of Federal agencies that may species is considered to be among the parts of the species’ range are vulnerable affect the species will be subject to more shy and docile species of North to climate variables, but to a lesser consultation with the Service as American rattlesnakes. Eastern extent than the southwestern required under section 7(a)(2) of the massasauga rattlesnakes are known to populations, and the northeastern Act. In doing so, the Service works with eat voles, mice, other small mammals, populations are least vulnerable to the action agencies to avoid or minimize small birds, amphibians, and even other climate change. adverse effects to the species to ensure species of snakes. Predatory birds (such We acknowledged in the SSA report that the continued existence of the as hawks) and mammals (such as that we believe our results species is not jeopardized. Also raccoons) are also known to prey on underestimate the risks associated with following listing, we will work closely eastern massasauga rattlesnakes. Thus, climate change, especially in Indiana with our partners in Federal, State, and they do have a function within and Michigan. As we move forward local units of government, as well as ecosystems where they occur. Finally, with recovery for the eastern NGOs and others with an interest in the there are no provisions in the Act that massasauga rattlesnake, we will more species, to identify and implement allow us to distinguish between species fully investigate the effects of climate proactive measures to conserve and that are popular and those that are change and work towards buffering recover the species. disliked. We used the best available vulnerable populations. (25) Comment: Several commenters scientific and commercial data to (23) Comment: Several commenters stated that critical habitat should be determine that the eastern massasauga supported listing the eastern designated for the eastern massasauga rattlesnake warrants listing as a massasauga rattlesnake. The comments rattlesnake. One of these commenters threatened species. included statements such as: added that habitat is ‘‘critical to the (27) Comment: One commenter stated • Resource development (natural gas species’ survival’’ and habitat loss and that public education will be an extraction and open pit mining for degradation is the most significant important component of conservation limestone, coal, and gravel) is a threat to the species, and provided for the eastern massasauga rattlesnake. significant threat to the species; Our Response: We thank the information arguing that although • Significant ongoing decline and commenter and agree with this human persecution is a threat, and multiple continuing threats throughout statement. We are aware that, under rare human disturbance of the snakes did the species’ range support listing; circumstances, bites from a venomous change the snakes’ behavior, no long- • Only small, isolated populations of snake, such as the eastern massasauga term effects were observed. They further the eastern massasauga rattlesnake rattlesnake, could present some risk to remain, and the species should be commented that increased risk of illegal human health and safety. We are also protected before further losses occur; collection or persecution could be aware that this is a reason why some and addressed through education efforts. people fear the eastern massasauga • It is important to preserve Our Response: We agree that outreach rattlesnake. Since the species became a biodiversity, so this species should be efforts will be important in addressing candidate for listing in 1999, the Service protected. many topics related to conserving the has worked closely with our partners to Our Response: We thank these eastern massasauga rattlesnake. provide outreach through producing or commenters for their statements. When However, we determined that funding print and digital outreach Congress passed the Act in 1973, it designation of critical habitat would materials, providing staff as speakers, recognized that our rich natural heritage increase persecution, unauthorized and also responding to questions from is of ‘‘aesthetic, ecological, educational, collection, and trade threats to the the media pertaining to this species. recreational, and scientific value to our eastern massasauga rattlesnake. The Following listing (see DATES, above), Nation and its people.’’ It further eastern massasauga rattlesnake is highly this need will not change, and it is our expressed concern that many of our valued in the pet trade, and that value intent to continue to work with partners nation’s native plants and animals were is likely to increase as the species to ensure that current information on in danger of becoming extinct. The becomes rarer. In addition, as a the role played by this species is purpose of the Act is to protect and venomous species, it also is the target of available to the public. recover imperiled species and the persecution. Furthermore, States and (28) Comment: The Illinois Farm ecosystems upon which they depend, other land managers have taken Bureau expressed concern that ‘‘certain and thus plays a role in preserving measures to control and restrict pesticide use’’ was included in the biodiversity. information on the locations of the proposed rule as an activity that may (24) Comment: One commenter stated eastern massasauga rattlesnake and to ‘‘result in a violation of section 9 of the that, as an alternative to designating no longer make location and survey Act.’’ They stated that the SSA report critical habitat, species protection could information readily available to the does not provide supporting evidence be improved by strengthening public. We have, therefore, determined that pesticides are a stressor. They environmental review for the eastern in accordance with 50 CFR 424.12(a)(1) requested that ‘‘certain pesticide use’’ be massasauga rattlesnake by providing that it is not prudent to designate removed from the list of activities that more information and adding more critical habitat for the eastern may result in a violation of section 9. stringent requirements on those massasauga rattlesnake (see Critical Our Response: Based on this conducting permitted activities. This Habitat, below, for a full discussion). comment, we took a closer look at the commenter recommended close (26) Comment: One commenter stated risk to the species associated with coordination between Federal and State that a rattlesnake does not contribute pesticide use and have removed agencies to achieve the appropriate level meaningfully to its ecosystem; thus, the ‘‘certain pesticide use’’ from the list of of environmental review and Service should focus on more important activities that may result in a violation management to conserve the species. and less loathsome species. of section 9 of the Act under the

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Available Conservation Measures construction to routine transmission and implement actions that would have section of this final rule. We included corridor maintenance, which could the most benefit to the species. pesticide use in the original list of affect their ability to provide essential (32) Comment: An individual reports potential threats due to the potential for services to millions of people. They having seen two eastern massasauga impacts to populations of burrowing requested that, because maintenance rattlesnakes in New Brunswick, Canada, crayfishes upon which the eastern and expansion of transmission corridors but the commenter did not provide any massasauga rattlesnake relies (by is beneficial to the conservation of the documentation or supporting evidence. hibernating in the burrows of these eastern massasauga rattlesnake (by Our Response: We considered the best crayfish); however, this link is not managing succession), the Service available data, including historical strongly substantiated. If additional consider a 4(d) rule specific to occurrences and the knowledge of local supporting information is found that transmission corridors. species experts, in this listing pesticides may pose a threat to the Our Response: While a number of determination. Because the eastern burrowing crayfishes and the eastern populations of the eastern massasauga massasauga rattlesnake also occurs in massasauga rattlesnake, we may again rattlesnake are considered to be extant Canada, we coordinated with colleagues recognize this in the future. We note in Pennsylvania and Ohio, many of from the responsible Federal (Parks that any determination of whether an those populations occur in scattered Canada) and Provincial (Ontario activity results in prohibited ‘‘take’’ of locations. While the limits of the Ministry of Resources and Forestry) an eastern massasauga rattlesnake is species’ range depicted on the map (see governments in Canada in compiling case-specific and independent of our Figure 1, above) give the appearance records used in our SSA. We are aware discussion in the proposed or final that this species is widespread, many of no documented records of the eastern listing rules. actions that would be expected to affect massasauga rattlesnake in New (29) Comment: The Illinois Farm the species where it does occur may, in Brunswick, and, as such, we do not Bureau requested that, as an important reality, take place in areas where it does consider this area to be part of the stakeholder, they should be involved in not. In cases where proximity to a species’ historical range. If, however, a ‘‘robust stakeholder engagement known location is uncertain, the the species is documented from process’’ to develop best management commenter, or similar entities, can localities outside of the range as we practices (BMPs) and avoidance contact the Service’s Ecological Services currently understand it, we will update measures that protect the eastern field offices for clarification and to our records accordingly. massasauga rattlesnake. address specific issues related to their (33) Comment: One industry group Our Response: Extant populations of needs. Also, in cases where an action is urged the Service to endorse the the eastern massasauga rattlesnake are regulated or permitted by another integrated vegetation management (IVM) now extremely rare in Illinois (perhaps Federal agency (for example the Federal BMPs they implement, and expressed fewer than six populations remaining), Energy Regulatory Commission (FERC)), their strong belief that through close and occur primarily on public consultation with the Service under coordination between the Service and conservation lands. This, in turn, makes section 7(a)(2) of the Act would also pipelines and utility companies encounters with this species in Illinois provide opportunities to determine best utilizing IVM BMPs, they can help be very rare. However, several core areas management practices in the event that part of the solution towards restoring occupied by the remaining Illinois the action may affect the species. There populations of eastern massasauga populations are adjacent to private are other provisions of the Act that rattlesnake. lands that are in agricultural use. allow for the consideration of such Our Response: We thank the Because of this, we believe it is management actions on a case-by-case commenter for their suggestion and look important to remaining engaged with basis; thus issuance of a species-specific forward to working collaboratively with the Illinois Farm Bureau and potentially 4(d) rule is not appropriate. landowners and managers from the affected private landowners as (31) Comment: A county government public, private, and industry sectors stakeholders. We will also work closely agency (Forest Preserve District of Will following listing. Also, while the eastern to follow the lead of the Illinois County, Illinois) stated that their land massasauga rattlesnake has a broad Department of Natural Resources, which holdings include a now-extirpated geographic range, in many cases extant has a successful track record of working population of eastern massasauga populations occur in widely scattered with private land owners (including rattlesnake and provided supporting locations. Thus, instances where farmers) in areas where eastern information. They also stated that they populations actually do occur close to massasauga rattlesnakes occur to hoped listing would allow additional certain project areas may actually be increase awareness of the conservation conservation efforts and possible fairly limited. In cases where proximity challenges faced by this species. reintroduction into previously occupied to a known location is uncertain, the (30) Comment: FirstEnergy lands. commenter, or similar entities, can commented that the eastern massasauga Our Response: We considered the best contact the Service’s Ecological Services rattlesnake is of interest to its 10 available data, including historical field offices for clarification and to operating companies, as populations occurrences and the knowledge of local proactively address specific issues occur in their service area. They further species experts, in conducting our SSA, related to their needs. Also, in cases commented that they use integrated and we also considered the population where an action is authorized, funded, vegetation management (IVM) to in Will County, Illinois, to be extirpated. or carried out by another Federal agency maintain grassland habitats within and We thank the commenter for providing (for example, FERC), consultation with along transmission corridors, thus additional information specific to the Service under section 7(a)(2) of the providing ideal habitat for species like surveys that led to this location being Act would also provide opportunities to the eastern massasauga rattlesnake. considered extirpated. We have determine best management practices in They claimed that listing the eastern incorporated that additional information the event that the action may affect the massasauga rattlesnake could have into our revised SSA report. We will species. significant impacts on their operations consider a range of recovery actions (34) Comment: One commenter stated in Pennsylvania and Ohio, from following listing and will work with that fire management is an important affecting new transmission line local and State partners to determine component of maintaining habitat for

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the eastern massasauga rattlesnake. uses require actions (for example massasauga rattlesnakes from northeast They further commented that prairie issuance of Federal permits) by other Iowa, indicating that snakes in the species, like the eastern massasauga Federal agencies, section 7(a)(2) of the sampled population are genetically rattlesnake, are adapted to fire; thus, if Act allows the action agency to consult distinct from other eastern massasauga fire is used appropriately, individuals with the Service to ensure that the rattlesnake populations. Those data can easily move to safety and very few action will not jeopardize listed species. indicate that snakes in this population will be killed. (36) Comment: One commenter are of hybrid origin consisting of a Our Response: As stated in our specified that it is imperative to keep mixture of approximately 80 percent response to Comment 1, above, we agree people safe on public lands. Thus, they genetic markers specific to the eastern that the eastern massasauga rattlesnake recommended that the State natural massasauga rattlesnake and 20 percent is a species that occurs primarily within resource agencies have the clear ability genetic markers specific to the western habitats that are dependent on periodic to remove snakes from areas where there massasauga rattlesnake (Sistrurus fires to maintain appropriate vegetative is a high likelihood the snakes will tergeminus). The commenter further structure. Suppression of wildfires come into contact with people. Another stated that modeling indicates that they following European settlement has commenter stated that the eastern originated through a historical allowed degradation of many such plant massasauga rattlesnake poses a risk to hybridization event between these communities through succession by livestock and pets in the summer species within the last 10,000 years, woody vegetation, and land managers months when the snakes are sunning likely as a result of shifting species often use prescribed fire as a themselves on roads, field edges, lawns, distributions due to post-glacial management technique to maintain and rock piles. A third commenter environmental effects. The commenter these communities so that woody added that listing the eastern stated that the conservation status of canopies are not established. However, massasauga rattlesnake will not protect these northeast Iowa populations should because many of the remaining it, as people who feel threatened by the be assessed. populations of the eastern massasauga snakes will continue to kill them and Our Response: We appreciate the rattlesnake are already small, and will not report it. information provided on the emerging vulnerable to loss of individuals (Faust Our Response: The Act includes science on genetics and taxonomy of et al. 2011, pp. 59–60; Seigel and Shiel provisions to allow flexibility to remove eastern massasauga rattlesnakes. We 1999, pp. 19–20), mortality resulting individual snakes from situations where hope to continue the close working from prescribed fire was one of the most they present a risk to human health or relationship with the commenter as the prominent stressors identified by Faust safety. These provisions include the science advances. The data on genetic et al. (2011, pp. 12–16) and in the SSA. potential for both lethal and nonlethal haplotypes described by Ray et al. Please refer to our response to Comment take, and the situations in which these (2013, entire) have been peer-reviewed 1, above, for more details regarding the options are permissible are discussed and published. Furthermore, these use of prescribed fire. above under our response to Comment haplotypes are current recognized by (35) Comment: One commenter 13. We also note that non-harmful the American Zoological Association in recommended that the Service not issue actions to encourage eastern massasauga managing their captive populations. any rules that would impinge upon the rattlesnakes to leave, stay off, or keep Thus, we used the genetic haplotypes of private property rights of individual out of areas with frequent human use, Ray et al. (2013, entire) to delineate our citizens on non-public lands. They including a residence, yard, structure, analysis units into a western analysis further stated that there is no need to set sidewalk, road, trail, foot path, or unit, a central analysis unit, and an aside specific lands or take private campground, would not result in take eastern analysis unit. We understand property to benefit this species, and that and thus are not prohibited. For that the commenter is also researching private landowners should only be example, maintenance of mowed lawn this topic and has stated intent to required to participate on a voluntary in areas of regular human use to publish it in a peer-reviewed journal. basis. discourage eastern massasauga The Act requires us to use the best Our Response: The Service works rattlesnakes from entering these areas is available data in decision making, and proactively with private landowners acceptable. we hope to continue the close working who want to voluntarily take measures (37) Comment: One commenter stated relationship with the commenter as the to help conserve listed species on their that Sistrurus catenatus populations genetic science on the species advances. property. We do not take private lands east of the Mississippi are divided into With regard to the detection of to benefit listed species. In cases where two genetic units: a ‘‘western’’ unit possible past hybridization in the Iowa we acquire lands (for example, through consisting of individuals from population, we thank this commenter fee-simple purchase, or through populations in Illinois and Wisconsin for providing new information. Since providing funding to our partners in and an ‘‘eastern’’ unit consisting of all this comment was submitted, we have State and local government, or to NGOs) other populations. The commenter discussed this topic further with the to benefit listed species, it is the stated that these populations are weakly commenter. Because the population in Service’s policy that purchases be made phylogenetically distinct from each question is comprised primarily of from willing sellers, and that fair market other and historical modeling suggests genetic markers of the eastern price be paid. In cases where private that eastern populations are derived massasauga rattlesnake, we still landowners propose legal activities or from western populations through a consider the northeast Iowa individuals uses of their lands that may lead to post-glacial colonization process. The to be eastern massasauga rattlesnakes. incidental take of listed species, the Act ‘‘western’’ unit is roughly comparable to (38) Comment: The Nature provides for mechanisms (such as the ‘‘western’’ unit proposed by Ray et Conservancy’s Indiana Office provided habitat conservation plans) that allow al. (2013, entire), while the ‘‘eastern’’ an overview of the status of eastern interested parties to find collaborative unit is consistent with the ‘‘central and massasauga rattlesnake populations at ways to minimize and mitigate impacts eastern’’ units proposed by Ray et al. sites they own in Indiana and that to the species while still allowing them (2013, entire). The same commenter historically supported the species. to proceed with their proposed provided data based on genetic analysis Our Response: We thank the activities. Similarly, if proposed land of tissue samples from eastern commenter for providing additional

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information on the historical occurrence is more prevalent than MI DNR or the and Plants. Under section 4(a)(1) of the of the eastern massasauga rattlesnake on Service estimate and that the species is Act, we may list a species based on: (A) their land holdings, and we have added common in northern Michigan. The present or threatened destruction, it to information gathered from the Our Response: It is widely recognized modification, or curtailment of its Natural Heritage Database as provided that Michigan still harbors a greater habitat or range; (B) overutilization for by the Indiana Department of Natural number of extant populations of the commercial, recreational, scientific, or Resources so that it may augment our eastern massasauga rattlesnake than any educational purposes; (C) disease or data on the species. of the other nine States and the one predation; (D) the inadequacy of (39) Comment: One commenter stated Canadian Province where the species existing regulatory mechanisms; or (E) that there is no evidence that the eastern occurred historically. We coordinated other natural or manmade factors massasauga rattlesnake existed in with our partner State fish and wildlife affecting its continued existence. Listing Missouri, and that populations in agencies, consulted the most current actions may be warranted based on any eastern Missouri should be considered information from Natural Heritage of the above threat factors, singly or in as western massasauga rattlesnakes, a Databases, and solicited information combination. different species. The commenter stated from species experts for each State and We have carefully assessed the best that populations of the eastern for Ontario to compile the most current scientific and commercial data available massasauga rattlesnakes occurring east data on the species. In addition to these regarding the past, present, and of the Mississippi River warrant scientific sources, we sought out public predicted future condition of the eastern protection. comment and data through the proposed massasauga rattlesnake and how threats Our Response: In evaluating the listing rule’s public comment period. In are affecting the species now and into taxonomy and distribution of the Michigan specifically, MNFI houses the the future. The species faces an array of eastern massasauga rattlesnake, we Natural Heritage Database; they, among threats that have and will likely considered the best available scientific others, provided input on the Michigan continue (often increasingly) to information (see pages 8–9 of the SSA populations. Based on these data, contribute to declines at all levels report). While recent genetic studies historically and currently, Michigan (individual, population, and species). showed that extant populations in harbors a greater number of extant The loss of habitat was historically, and central and northwestern Missouri populations than any of the other nine continues to be, the threat with greatest belong to the western massasauga States and Ontario. There are 259 impact to the species (Factor A), either rattlesnake (Sistrurus tergeminus), no known populations of eastern through development or through useful tissues from snakes in extreme massasauga rattlesnake in Michigan; changes in habitat structure due to eastern Missouri (St. Louis and Warren this is 46 percent of all known vegetative succession. Disease, new or Counties) were available to the populations rangewide. Of these, 158 increasingly prevalent, is another researchers for inclusion in the genetic (61 percent) are believed to persist today emerging and potentially catastrophic studies because those populations are and another 47 have unknown status; threat to eastern massasauga rattlesnake likely extirpated. This was confirmed the Michigan populations represent 59 populations (Factor C) that is likely to during coordination between the percent of all known extant populations affect the species in the foreseeable Service and the responsible State fish rangewide. Thus, compared to other future. As population sizes decrease, and wildlife management agency localities, the eastern massasauga localized impacts, such as collection (Missouri Department of Conservation). rattlesnake was historically and and persecution of individuals, also However, published studies on continues to be more prevalent in increases the risk of extinction (Factor phenotypic variation (especially color Michigan than in any other State. We B). These stressors are chronic and are pattern) of massasauga rattlesnakes from acknowledge that there may still be expected to continue with a similar throughout Missouri—including the some undocumented populations magnitude of impact into the future. historical, but now likely extirpated remaining, especially in Michigan. We Additionally, this species is vulnerable populations in extreme eastern recommend that individuals with to the effects of climate change through Missouri—indicate that the latter specific knowledge of populations increasing intensity of winter droughts populations could be phenotypically contact MNFI to ensure the locations of and increasing risk of summer floods included within the eastern massasauga eastern massasauga rattlesnake are (Factor E), particularly in the rattlesnake. Recently extirpated, known. southwestern part of its range (Pomera historical populations of the eastern (41) Comment: Several commenters et al. undated, unpaginated; Pomera et massasauga rattlesnake were known stated that the species should be listed al. 2014, pp. 95–97). from the adjacent part of Illinois, less as endangered rather than threatened, Some conservation actions (for than 19 miles (30 kilometers) from the but did not provide further rationale or example, management of invasive historical eastern Missouri populations. new evidence in support of this species and woody plant encroachment, In addition, genetic studies of recommendation. timing prescribed fires to avoid the massasauga rattlesnakes in Iowa Our Response: For reasons discussed active season) are currently in place, indicate that the eastern massasauga in the Determination section of this final and provide protection and genotype is present there (though these rule, the Service has determined that the enhancement to some eastern are also of likely past hybridization), eastern massasauga rattlesnake meets massasauga rattlesnake populations (see well west of the Mississippi River. In the Act’s definition of a threatened pp. 43–45 in the SSA report for a full the absence of better information on the species, rather than an endangered discussion). However, our analysis taxonomic identity of the likely species. projects that eastern massasauga extirpated massasauga populations in rattlesnake populations will continue to extreme eastern Missouri, we have Determination decline even if current conservation included those populations within the Section 4 of the Act (16 U.S.C. 1533), measures are continued into the future. historical range of the eastern and its implementing regulations at 50 As a result of these factors, the number massasauga rattlesnake. CFR part 424, set forth the procedures and health of eastern massasauga (40) Comment: One commenter stated for adding species to the Federal Lists rattlesnake populations are anticipated that the eastern massasauga rattlesnake of Endangered and Threatened Wildlife to decline across the species’ range,

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particularly in the southwestern 50 years, the current threats are still still exist, and we anticipate they will portions of the range, where large losses reliably foreseeable at the end of that remain self-sustaining. relative to historical conditions have time span based on models, available The SSA results likely represent an already occurred. information on threats impacting the overly optimistic scenario for this Further, the reductions in eastern species, and other analyses; however, species (see pp. 87–88 of the SSA report massasauga rattlesnake population we cannot reasonably predict future for a list of assumptions and their numbers, distribution, and health conditions for the species beyond 50 expected effect). For example, the forecast in the SSA report likely years. Our uncertainty in forecasting the analysis treated populations of represent an overly optimistic scenario status of the species beyond 50 years is unknown status as if they were all for the species, and future outcomes also increased by our methodology of extant, likely resulting in an may be worse than predicted. Because extrapolating from a subset of modeled overestimate of species’ viability. Thus, of the type of information available to populations to all extant or potentially we considered whether treating the us, the quantitative analysis assumes extant populations. populations with an ‘‘unknown’’ status that threat magnitude and pervasiveness We find that the eastern massasauga as currently extant in the analysis had remain constant into the future, but it is rattlesnake is likely to become an effect on the status determination. more likely that the magnitude of endangered throughout its entire range We examined whether the number of threats will increase into the future within the foreseeable future based on self-sustaining populations would throughout the range of the species (for the severity and pervasiveness of threats change significantly over time if we example, the frequency of drought and currently impacting the species, the instead assumed that all populations flooding events are likely to increase) or projected loss of populations rangewide with an ‘‘unknown’’ status were that novel threats (for example, new (loss of resiliency and redundancy), and extirpated. The results are a more severe pathogens) may arise. In addition, some the projected loss of its distribution projected decline in the eastern currently identified threats are not within large portions of its range. This massasauga rattlesnake’s status than our included in the quantitative analysis loss in distribution could represent a analysis projects when we assign the (for example, disease, road mortality, loss of genetic and ecological adaptive unknown status populations to the persecution/collection, and impacts diversity, as well as a loss of ‘‘extant’’ category, but not to the extent from climate change), because we lack populations from parts of the range that that we would determine the species to specific, quantitative information on may provide future refugia in a be currently in danger of extinction. how these factors may affect the species changing climate. Furthermore, many of Under the Act and our implementing in the future. These factors and their the currently extant populations are regulations, a species may warrant potential effects on the eastern experiencing high magnitude threats. listing if it is in danger of extinction or massasauga rattlesnake were discussed Although these high magnitude threats is likely to become so throughout all or and considered qualitatively as part of are not currently pervasive rangewide, a significant portion of its range. the determination. they are likely to become pervasive in Because we have determined that the The species’ viability is also affected eastern massasauga rattlesnake is likely by losses of populations from historical the foreseeable future as they expand and impact additional populations to become in danger of extinction portions of its range, which may have within the foreseeable future throughout represented unique genetic and throughout the species’ range. Therefore, on the basis of the best all of its range, no portion of its range ecological diversity. The species is can be ‘‘significant’’ for purposes of the extirpated from Minnesota and available scientific and commercial definitions of ‘‘endangered species’’ and Missouri, and many populations have data, we determine that the eastern ‘‘threatened species.’’ See the Final been lost in the western part of the massasauga rattlesnake is likely to Policy on Interpretation of the Phrase species’ range. Rangewide, the extent of become an endangered species within ‘‘Significant Portion of Its Range’’ in the occurrence is predicted to decline by 80 the foreseeable future throughout all of Endangered Species Act’s Definitions of percent by year 50. Actual losses in its range, and, thus, we are listing it as ‘‘Endangered Species’’ and ‘‘Threatened extent of occurrence will likely be a threatened species in accordance with Species’’ (79 FR 37578; July 1, 2014). greater than estimated because of the sections 3(20) and 4(a)(1) of the Act. methodology used in our analysis, as We find that an endangered species Critical Habitat discussed above. status is not appropriate for the eastern The Act defines an endangered massasauga rattlesnake. In assessing Background species as any species that is ‘‘in danger whether the species is in danger of Critical habitat is defined in section 3 of extinction throughout all or a extinction, we used the plain language of the Act as: significant portion of its range’’ and a understanding of this phrase as meaning (1) The specific areas within the threatened species as any species that is ‘‘presently in danger of extinction.’’ We geographical area occupied by the ‘‘likely to become an endangered considered whether extinction is a species, at the time it is listed in species within the foreseeable future plausible condition as the result of the accordance with the Act, on which are throughout all or a significant portion of established, present condition of the found those physical or biological its range.’’ A key statutory difference eastern massasauga rattlesnake. Based features: between an endangered species and a on the species’ present condition, we (a) Essential to the conservation of the threatened species is the timing of when find that the species is not currently in species, and a species may be in danger of extinction, danger of extinction. The timeframe for (b) Which may require special either now (endangered species) or in conditions that render the species to be management considerations or the foreseeable future (threatened in danger of extinction is beyond the protection; and species). Based on the biology of the present. While the magnitude of threats (2) Specific areas outside the eastern massasauga rattlesnake and the affecting populations is high, threats are geographical area occupied by the degree of uncertainty of future not acting at all sites at a sufficient species at the time it is listed, upon a predictions, we find that the magnitude to result in the species determination that such areas are ‘‘foreseeable future’’ for the species is presently being in danger of extinction. essential for the conservation of the best defined as 50 years. Forecasting to Additionally, some robust populations species.

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Our regulations at 50 CFR 424.02 are included in a critical habitat Fiscal Year 2001 (Pub. L. 106–554; H.R. define the geographical area occupied designation if they contain physical or 5658)), and our associated Information by the species as: An area that may biological features (1) which are Quality Guidelines, provide criteria, generally be delineated around species’ essential to the conservation of the establish procedures, and provide occurrences, as determined by the species and (2) which may require guidance to ensure that our decisions Secretary (i.e., range). Such areas may special management considerations or are based on the best scientific data include those areas used throughout all protection. For these areas, critical available. For example, they require our or part of the species’ life cycle, even if habitat designations identify, to the biologists, to the extent consistent with not used on a regular basis (for example, extent known using the best scientific the Act and with the use of the best migratory corridors, seasonal habitats, and commercial data available, those scientific data available, to use primary and habitats used periodically, but not physical or biological features that are and original sources of information as solely by vagrant individuals). essential to the conservation of the the basis for recommendations to Conservation, as defined under species (such as space, food, cover, and designate critical habitat. section 3 of the Act, means to use, and protected habitat). In identifying those When we are determining which areas the use of, all methods and procedures physical or biological features, we focus should be designated as critical habitat, that are necessary to bring an on the specific features that support the our primary source of information is endangered or threatened species to the life-history needs of the species, generally the information from the SSA point at which the measures provided including but not limited to, water and information developed during the pursuant to the Act are no longer characteristics, soil type, geological listing process for the species. necessary. Such methods and features, prey, vegetation, symbiotic Additional information sources may procedures include, but are not limited species, or other features. A feature may include any generalized conservation to, all activities associated with be a single habitat characteristic, or a strategy, criteria, or outline that may scientific resources management such as more complex combination of habitat have been developed for the species, the research, census, law enforcement, characteristics. Features may include recovery plan for the species, articles in habitat acquisition and maintenance, habitat characteristics that support peer-reviewed journals, conservation propagation, live trapping, and ephemeral or dynamic habitat plans developed by States and counties, transplantation, and, in the conditions. Features may also be scientific status surveys and studies, extraordinary case where population expressed in terms relating to principles biological assessments, other pressures within a given ecosystem of conservation biology, such as patch unpublished materials, or experts’ cannot be otherwise relieved, may size, distribution distances, and opinions or personal knowledge. include regulated taking. connectivity. Habitat is dynamic, and species may Critical habitat receives protection Under the second prong of the Act’s move from one area to another over under section 7 of the Act through the definition of critical habitat, we can time. We recognize that critical habitat requirement that Federal agencies designate critical habitat in areas designated at a particular point in time ensure, in consultation with the Service, outside the geographical area occupied may not include all of the habitat areas that any action they authorize, fund, or by the species at the time it is listed if that we may later determine are carry out is not likely to result in the we determine that such areas are necessary for the recovery of the destruction or adverse modification of essential for the conservation of the species. For these reasons, a critical critical habitat. The designation of species. We will determine whether habitat designation does not signal that critical habitat does not affect land unoccupied areas are essential for the habitat outside the designated area is ownership or establish a refuge, conservation of the species by unimportant or may not be needed for wilderness, reserve, preserve, or other considering the life-history, status, and recovery of the species. Areas that are conservation area. Critical habitat conservation needs of the species. This important to the conservation of the designation does not allow the will be further informed by any species, both inside and outside the government or public to access private generalized conservation strategy, critical habitat designation, will lands, nor does it require criteria, or outline that may have been continue to be subject to: (1) implementation of restoration, recovery, developed for the species to provide a Conservation actions implemented or enhancement measures by non- substantive foundation for identifying under section 7(a)(1) of the Act, (2) Federal landowners. Where a landowner which features and specific areas are regulatory protections afforded by the requests Federal agency funding or essential to the conservation of the requirement in section 7(a)(2) of the Act authorization for an action that may species and, as a result, the for Federal agencies to ensure their affect a listed species or critical habitat, development of the critical habitat actions are not likely to jeopardize the the Federal agency would be required to designation. For example, an area continued existence of any endangered consult with the Service under section currently occupied by the species but or threatened species, and (3) section 9 7(a)(2) of the Act, but even if that was not occupied at the time of of the Act’s prohibitions on taking any consultation leads to a finding that the listing may be essential to the individual of the species, including action would likely cause destruction or conservation of the species and may be taking caused by actions that affect adverse modification of critical habitat, included in the critical habitat habitat. Federally funded or permitted the resulting obligation of the Federal designation. projects affecting listed species outside action agency and the landowner is not Section 4 of the Act requires that we their designated critical habitat areas to restore or recover the species, but designate critical habitat on the basis of may still result in jeopardy findings in rather to implement reasonable and the best scientific data available. some cases. These protections and prudent alternatives to avoid Further, our Policy on Information conservation tools will continue to destruction or adverse modification of Standards Under the Endangered contribute to recovery of this species. critical habitat. Species Act (published in the Federal Similarly, critical habitat designations Under the first prong of the Act’s Register on July 1, 1994 (59 FR 34271)), made on the basis of the best available definition of critical habitat, areas the Information Quality Act (section 515 information at the time of designation within the geographical area occupied of the Treasury and General will not control the direction and by the species at the time it was listed Government Appropriations Act for substance of future recovery plans,

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habitat conservation plans (HCPs), or in Canada and smuggled into the United that could be associated with critical other species conservation planning States, most destined for the pet trade habitat designation (Redmer 2015, pers. efforts if new information available at (Thomas 2010, unpaginated). Snakes in comm.). Designating critical habitat the time of these planning efforts calls general are known to be feared and could negate the efforts of State and for a different outcome. persecuted by people, and venomous local conservation agencies to restrict access to location information that Prudency Determination species even more so (Ohman and Mineka 2003, p. 7; Whitaker and Shine could significantly affect future efforts Section 4(a)(3) of the Act, as 2000, p. 121). As a venomous snake, the to control the threat of unauthorized amended, and implementing regulations eastern massasauga rattlesnake is no collection and trade and persecution of (50 CFR 424.12), require that, to the exception, with examples of roundups eastern massasauga rattlesnakes. maximum extent prudent and or bounties for them persisting through Summary of Prudency Determination determinable, we designate critical the mid-1900s (Bushey 1985, p. 10; Vogt habitat at the time the species is 1981; Wheeling, IL, Historical Society We have determined that designating determined to be an endangered or Web site accessed 2015), and more critical habitat for the eastern massasauga rattlesnake is not prudent. threatened species. Our regulations (50 recent examples of persecution in CFR 424.12(a)(1)) state that the Designation of critical habitat would Pennsylvania (Jellen 2005, p. 11) and designation of critical habitat is not increase the threats to the eastern Michigan (Baily et al. 2011, p. 171). The prudent when one or both of the massasauga rattlesnake from process of designating critical habitat following situations exist: persecution and unauthorized collection would increase human threats to the (1) The species is threatened by taking and trade. A limited number of U.S. or other human activity, and eastern massasauga rattlesnake by species listed under the Act have identification of critical habitat can be increasing the vulnerability of this commercial value in trade. The eastern expected to increase the degree of threat species to unauthorized collection and massasauga rattlesnake is one of them. to the species, or trade, or to persecution, through public Due to the market demand and (2) Such designation of critical habitat disclosure of its locations. Designation willingness of individuals to collect would not be beneficial to the species. of critical habitat requires the eastern massasauga rattlesnakes without In determining whether a designation publication of maps and a specific authorization, and the willingness of would not be beneficial, the factors the narrative description of critical habitat others to kill them out of fear or wanton Service may consider include but are in the Federal Register. The degree of dislike, we have determined that any not limited to: Whether the present or detail in those maps and boundary action that publicly discloses the threatened destruction, modification, or descriptions is far greater than the location of eastern massasauga curtailment of a species’ habitat or range general location descriptions provided rattlesnakes (such as critical habitat) is not a threat to the species, or whether in this final rule to list the species as a puts the species in further peril. Many any areas meet the definition of ‘‘critical threatened species. Furthermore, a populations of the eastern massasauga habitat.’’ In our proposed listing rule, critical habitat designation normally rattlesnake are small, and the life we determined that both of the above results in the news media publishing history of the species makes it circumstances applied to the eastern articles in local newspapers and special vulnerable to additive loss of massasauga rattlesnake. However, under interest Web sites, usually with maps of individuals (for example, loss of our updated critical habitat regulations the critical habitat. We have determined reproductive adults in numbers that at 50 CFR 424.12 (81 FR 7414; February that the publication of maps and would exceed those caused by predation 11, 2016), we cannot conclude that descriptions outlining the locations of and other non-catastrophic natural critical habitat designation would not be this species would further facilitate factors), requiring a focused and beneficial to the species because we unauthorized collection and trade, as comprehensive approach to reducing have found that there are threats to the collectors would know the exact threats. One of the basic measures to species’ habitat (the present or locations where eastern massasauga protect eastern massasauga rattlesnakes threatened destruction, modification, or rattlesnakes occur. While eastern from unauthorized collection and trade curtailment of its habitat or range massasauga rattlesnakes are cryptic in is restricting access to information (Factor A) is a threat to the species). coloration, they can still be collected in pertaining to the location of the species’ However, we still find that designation high numbers during certain parts of populations. Publishing maps and of critical habitat is not prudent under their active seasons (for example, spring narrative descriptions of eastern the first circumstance because we have egress from hibernation or summer massasauga rattlesnake critical habitat determined that the eastern massasauga gestation). Also, individuals of this would significantly affect our ability to rattlesnake is threatened by taking or species are often slow-moving and have reduce the threat of persecution, as well other human activity and that small home ranges. Therefore, as unauthorized collection and trade. identification of critical habitat can be publishing specific location information We have, therefore, determined in expected to increase the degree of threat would provide a high level of assurance accordance with 50 CFR 424.12(a)(1) to the species. that any person going to a specific that it is not prudent to designate Overutilization in the form of location would be able to successfully critical habitat for the eastern poaching and unauthorized collection locate and collect specimens, given the massasauga rattlesnake. (Factor B) of the eastern massasauga species’ site fidelity and ease of capture rattlesnake for the pet trade is a factor once located. Due to the threat of Available Conservation Measures contributing to declines, and remains a unauthorized collection and trade, a Conservation measures provided to threat with significant impact to this number of biologists working for State species listed as endangered or species, which has high black market and local conservation agencies that threatened species under the Act value. For example, an investigation manage populations of eastern include recognition, recovery actions, into reptile trafficking reports massasauga rattlesnakes have expressed requirements for Federal protection, and documented 35 eastern massasauga to the Service serious concerns with prohibitions against certain practices. rattlesnakes (representing nearly one publishing maps and boundary The recognition of a species, through entire wild source population) collected descriptions of occupied habitat areas listing, results in public awareness, and

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conservation by Federal, State, Tribal, requires cooperative conservation efforts Engineers; construction and and local agencies; private on private, State, and Tribal lands. maintenance of roads or highways by organizations; and individuals. The Act Following publication of this final the Federal Highway Administration; encourages cooperation with the States rule, funding for recovery actions will and construction and maintenance of and other countries and requires that be available from a variety of sources, pipelines or rights-of-way for recovery actions be carried out for all including Federal budgets, State transmission of electricity, and other listed species. The protection required programs, and cost share grants for non- energy related projects permitted or by Federal agencies and the prohibitions Federal landowners, the academic administered by the Federal Energy against certain activities are discussed, community, and nongovernmental Regulatory Commission. in part, below. organizations. In addition, pursuant to Under section 4(d) of the Act, the The primary purpose of the Act is the section 6 of the Act, the States of Service has discretion to issue conservation of endangered and Illinois, Indiana, Iowa, Michigan, regulations that we find necessary and threatened species and the ecosystems Minnesota, Missouri, New York, Ohio, advisable to provide for the upon which they depend. The ultimate Pennsylvania, and Wisconsin will be conservation of threatened species. The goal of such conservation efforts is the eligible for Federal funds to implement Act and its implementing regulations set recovery of these listed species, so that management actions that promote the forth a series of general prohibitions and they no longer need the protective protection or recovery of the eastern exceptions that apply to threatened measures of the Act. Subsection 4(f) of massasauga rattlesnake. Information on wildlife. The prohibitions of section the Act calls for the Service to develop our grant programs that are available to 9(a)(1) of the Act, as applied to and implement recovery plans for the aid species recovery can be found at: threatened wildlife and codified at 50 conservation of endangered and http://www.fws.gov/grants. CFR 17.31, make it illegal for any person threatened species. The recovery Please let us know if you are subject to the jurisdiction of the United planning process involves the interested in participating in recovery States to take (including harass, harm, identification of actions that are efforts for the eastern massasauga pursue, hunt, shoot, wound, kill, trap, necessary to address the threats to its rattlesnake. Additionally, we invite you capture, or collect; or to attempt any of survival and recovery. The goal of this to submit any new information on this these) threatened wildlife within the process is to restore listed species to a species whenever it becomes available United States or on the high seas. In point where they are secure, self- and any information you may have for addition, it is unlawful to import; sustaining, and functioning components recovery planning purposes (see FOR export; deliver, receive, carry, transport, of their ecosystems. FURTHER INFORMATION CONTACT). or ship in interstate or foreign Recovery planning includes the Section 7(a) of the Act requires commerce in the course of commercial development of a draft and final Federal agencies to evaluate their activity; or sell or offer for sale in recovery plan. The recovery plan also actions with respect to any species that interstate or foreign commerce any identifies recovery criteria for review of is listed as an endangered or threatened listed species. It is also illegal to when a species may be ready for species and with respect to its critical possess, sell, deliver, carry, transport, or downlisting or delisting, and methods habitat, if any is designated. Regulations ship any such wildlife that has been for monitoring recovery progress. implementing this interagency taken illegally. Certain exceptions apply Recovery plans also establish a cooperation provision of the Act are to employees of the Service, the framework for agencies to coordinate codified at 50 CFR part 402. Section National Marine Fisheries Service, other their recovery efforts and provide 7(a)(2) of the Act requires Federal Federal land management agencies, and estimates of the cost of implementing agencies to ensure that activities they State conservation agencies. recovery tasks. When completed, the authorize, fund, or carry out are not We may issue permits to carry out draft recovery plan and the final likely to jeopardize the continued otherwise prohibited activities recovery plan will be available on our existence of any endangered or involving threatened wildlife under Web site (http://www.fws.gov/ threatened species or destroy or certain circumstances. Regulations endangered), or from our Chicago adversely modify its critical habitat. If a governing permits are codified at 50 Ecological Services Field Office (see FOR Federal action may affect a listed CFR 17.32. With regard to threatened FURTHER INFORMATION CONTACT). species or its critical habitat, the wildlife, a permit may be issued for the Revisions of the plan may be done to responsible Federal agency must enter following purposes: For scientific address continuing or new threats to the into consultation with the Service. purposes, to enhance the propagation or species, as new substantive information Federal agency actions within the survival of the species, for economic becomes available. Implementation of species’ habitat that may require hardship, for zoological exhibition, for recovery actions generally requires the conference or consultation or both as educational purposes, and for incidental participation of a broad range of described in the preceding paragraph take in connection with otherwise partners, including other Federal include management and any other lawful activities. There are also certain agencies, States, Tribes, landscape-altering activities on Federal statutory exemptions from the nongovernmental organizations, lands administered by the Service prohibitions, which are found in businesses, and private landowners. (Upper Mississippi National Wildlife sections 9 and 10 of the Act. Examples of recovery actions include and Fish Refuge, Wisconsin), U.S. It is our policy, as published in the habitat restoration (for example, Forest Service (Huron-Manistee Federal Register on July 1, 1994 (59 FR restoration of native vegetation) and National Forest, Michigan), National 34272), to identify to the maximum management, research, captive Park Service (Indiana Dunes National extent practicable at the time a species propagation and reintroduction, and Lakeshore, Indiana), or military lands is listed, those activities that would or outreach and education. The recovery of administered by branches of the would not constitute a violation of many listed species cannot be Department of Defense (Fort Grayling, section 9 of the Act. The intent of this accomplished solely on Federal lands Michigan); flood control projects (Lake policy is to increase public awareness of because their range may occur primarily Carlyle, Illinois) and issuance of section the effect of a final listing on proposed or solely on non-Federal lands. To 404 Clean Water Act (33 U.S.C. 1251 et and ongoing activities within the range achieve recovery of these species seq.) permits by the U.S. Army Corps of of the listed species. Based on the best

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available information, the following Based on the best available References Cited activities may potentially result in a information, the following actions are A complete list of references cited in violation of section 9 of the Act; this list unlikely to result in a violation of this rulemaking is available on the is not comprehensive: section 9 of the Act, if these activities Internet at http://www.regulations.gov (1) Development of land or the are carried out in accordance with and upon request from the Chicago conversion of native land to agricultural existing regulations and permit Ecological Services Field Office (see FOR land, including the construction of any requirements; this list is not FURTHER INFORMATION CONTACT). related infrastructure (for example, comprehensive: roads, bridges, railroads, pipelines, Authors (1) Pre-emergent fire: Prescribed burns utilities) in occupied eastern The primary authors of this final rule massasauga rattlesnake habitat; to control vegetation occurring prior to eastern massasauga rattlesnake are staff members of the Midwest (2) Certain dam construction: In an Regional Office. area where the dam alters the habitat emergence from hibernacula (typically from native land types (for example, in late March to early April); and List of Subjects in 50 CFR Part 17 grassland, swamp, fen, bog, wet prairie, (2) Pre-emergent mowing or other Endangered and threatened species, sedge meadow, marshland, peatland, mechanical vegetation removal: Mowing Exports, Imports, Reporting and floodplain forest, coniferous forest) or cutting of vegetation prior to eastern recordkeeping requirements, causing changes in hydrology at massasauga rattlesnake emergence from Transportation. hibernacula or where the dam causes hibernacula. fragmentation that separates snakes Regulation Promulgation Questions regarding whether specific from hibernacula or gestational sites; Accordingly, we amend part 17, (3) Post-emergent prescribed fire: activities would constitute a violation of section 9 of the Act should be directed subchapter B of chapter I, title 50 of the Prescribed burns to control vegetation Code of Federal Regulations, as set forth to the Chicago Ecological Services Field that are conducted after snakes have below: emerged from their hibernacula and are Office (see FOR FURTHER INFORMATION thus exposed to the fire; CONTACT). PART 17—ENDANGERED AND (4) Post-emergent mowing for habitat Required Determinations THREATENED WILDLIFE AND PLANTS management: Mowing of vegetation after snakes have emerged from hibernacula National Environmental Policy Act (42 ■ 1. The authority citation for part 17 can cause direct mortality by contact U.S.C. 4321 et seq.) continues to read as follows: with blades or being run over by tires Authority: 16 U.S.C. 1361–1407; 1531– on mower; We have determined that 1544; and 4201–4245, unless otherwise (5) Water level manipulation: environmental assessments and noted. environmental impact statements, as Flooding or hydrologic drawdown ■ defined under the authority of the 2. Amend § 17.11(h) by adding an affecting eastern massasauga rattlesnake entry for ‘‘Rattlesnake, eastern National Environmental Policy Act individuals or habitat, particularly massasauga’’ to the List of Endangered (NEPA; 42 U.S.C. 4321 et seq.), need not hibernacula; and Threatened Wildlife in alphabetical be prepared in connection with listing (6) Certain research activities: order under REPTILES to read as a species as an endangered or Collection and handling of eastern follows: massasauga rattlesnake individuals for threatened species under the research that may result in displacement Endangered Species Act. We published § 17.11 Endangered and threatened or death of the individuals; and a notice outlining our reasons for this wildlife. (7) Poaching, collecting, or determination in the Federal Register * * * * * persecuting individuals. on October 25, 1983 (48 FR 49244). (h) * * *

Listing citations and Common name Scientific name Where listed Status applicable rules

******* REPTILES

******* Rattlesnake, eastern massasauga ...... Sistrurus catenatus ...... Wherever found ...... T [Insert Federal Register citation]; 9/30/16.

*******

Dated: September 21, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. 2016–23538 Filed 9–29–16; 8:45 am] BILLING CODE 4333–15–P

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