Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Eastern Massasauga Rattlesnake, 67193-67214 [2016-23538]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Rules and Regulations]
[Pages 67193-67214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23538]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2015-0145; 4500030113]
RIN 1018-BA98


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for the Eastern Massasauga Rattlesnake

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened species status under the Endangered Species Act of 1973 
(Act), as amended, for the eastern massasauga rattlesnake (Sistrurus 
catenatus), a rattlesnake species found in 10 States and 1 Canadian 
Province. The rule adds this species to the Federal List of Endangered 
and Threatened Wildlife. We have also determined that the designation 
of critical habitat for the eastern massasauga rattlesnake is not 
prudent due to an increased risk of collection and persecution.

DATES: This rule is effective October 31, 2016.

ADDRESSES: This final rule is available on the Internet at https://www.regulations.gov and https://www.fws.gov/midwest/endangered/reptiles/eama/. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at https://www.regulations.gov or by appointment, 
during normal business hours at: U.S. Fish and Wildlife Service, 
Chicago Ecological Services Field Office, 230 South Dearborn, Suite 
2938, Chicago, IL 60604; telephone 312-216-4720.

FOR FURTHER INFORMATION CONTACT: Louise Clemency, Field Supervisor, 
U.S. Fish and Wildlife Service, Chicago Ecological Services Field 
Office, 230 South Dearborn, Suite 2938, Chicago, IL 60604; telephone 
312-216-4720. Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species may warrant 
protection through listing if it is endangered or threatened throughout 
all or a significant portion of its range. Listing a species as an 
endangered species or threatened species can only be completed by 
issuing a rule. Additionally, under the Act, critical habitat shall be 
designated, to the maximum extent prudent and determinable, for any 
species determined to be an endangered species or threatened species 
under the Act. We have determined that designating critical habitat is 
not prudent for the eastern massasauga rattlesnake due to an increased 
risk of collection and persecution.
    This rule makes final the listing of the eastern massasauga 
rattlesnake (Sistrurus catenatus) as a threatened species.
    The basis for our action. Under the Act, we can determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. Although there are several factors that are 
affecting the eastern massasauga rattlesnake's status, the loss of 
habitat was historically, and continues to be, the primary threat, 
either through development or through changes in habitat structure due 
to vegetative succession.
    Peer review and public comment. A Species Status Assessment (SSA) 
team prepared an SSA report (Szymanski et al. 2016) for the eastern 
massasauga rattlesnake. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA 
represents a compilation of the best available scientific and 
commercial data concerning the biological status of the species, 
including the impacts of past, present, and future factors (both 
negative and beneficial) affecting the eastern massasauga rattlesnake. 
We sought comments on the SSA from independent specialists to ensure 
that our determination is based on scientifically sound data, 
assumptions, and analyses. We invited these peer reviewers to comment 
on our listing proposal. We also considered all comments and 
information we received during the comment period.
    The SSA report underwent independent peer review by 21 scientists 
with expertise in eastern massasauga rattlesnake biology, habitat 
management, and stressors (factors negatively affecting the species) to 
the species. The SSA report and other materials relating to this 
determination can be found on the Midwest Region Web site at https://www.fws.gov/midwest/Endangered/ and at https://www.regulations.gov under 
Docket No. FWS-R3-ES-2015-0145.

Previous Federal Actions

    On September 30, 2015, the Service published a proposed rule (80 FR 
58688) to list the eastern massasauga rattlesnake as a threatened 
species under the Act (16 U.S.C. 1531 et seq.). We accepted public 
comments on the proposed rule for 60 days, ending November 30, 2015. 
Please refer to the proposed rule (80 FR 58688; September 30, 2015) for 
a detailed description of previous Federal actions concerning this 
species.

Background

    Please refer to the proposed listing rule (80 FR 58688; September 
30, 2015) for a summary of species information.

Summary of Biological Status and Threats

    The Act directs us to determine whether any species is an 
endangered species or a threatened species because of any factors 
affecting its continued existence. We completed a comprehensive 
assessment of the biological status of the eastern massasauga 
rattlesnake, and prepared the SSA report, which provides a thorough 
description of the species' overall viability. We generally defined 
viability as the ability of the species to maintain self-sustaining 
populations over the long term. We used the conservation biology 
principles of resiliency, representation, and redundancy in our 
analysis. Briefly, resiliency is the ability of the species to 
withstand environmental stochasticity (unpredictable fluctuations in 
environmental conditions (for example, wet or dry, warm or cold 
years)); redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, hurricanes); and 
representation is the ability of the species to adapt over time to 
long-term

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changes in the environment (for example, climate changes). In general, 
the more redundant, representative, and resilient a species is, the 
more likely it is to sustain populations over time, even under changing 
environmental conditions. Using these principles, we considered the 
eastern massasauga rattlesnake's needs at the individual, population, 
and species scales. We also identified the beneficial factors and 
stressors influencing the species' viability. We considered the degree 
to which the species' ecological needs are met both currently and as 
can be reliably forecasted into the future, and we assessed the 
consequences of any unmet needs as they relate to species viability. In 
this section, we summarize the conclusions of the SSA, which can be 
accessed in the SSA report at https://www.fws.gov/midwest/Endangered/ 
and at https://www.regulations.gov under Docket No. FWS-R3-ES-2015-0145.
    For survival and reproduction at the individual level, the eastern 
massasauga rattlesnake requires appropriate habitat, which varies 
depending on the season and its life stage (see Background section of 
the proposed listing rule at 80 FR 58688, September 30, 2015). During 
the winter (generally October through March), they occupy hibernacula, 
such as crayfish burrows. Hydrology at eastern massasauga rattlesnake 
sites is important in maintaining conditions with high enough water 
levels to support the survival of hibernating eastern massasauga 
rattlesnakes. During their active season (after they emerge from 
hibernacula), they require sparse canopy cover and sunny areas 
(intermixed with shaded areas) for thermoregulation (basking and 
retreat sites), abundant prey (foraging sites), and the ability to 
escape predators (retreat sites). Habitat structure, including early 
successional stage and low canopy cover, appears to be more important 
for eastern massasauga rattlesnake habitat than plant community 
composition or soil type. Maintaining such habitat structure may 
require periodic management of most habitat types occupied by the 
eastern massasauga rattlesnake.
    At the population level, the eastern massasauga rattlesnake 
requires sufficient population size, population growth, survivorship 
(the number of individuals that survive over time), recruitment (adding 
individuals to the population through birth or immigration), and 
population structure (the number and age classes of both sexes) to be 
sustainable over the long term. Populations also require a sufficient 
quantity of high-quality microhabitats with intact hydrological and 
ecological processes that maintain suitable habitat, and connectivity 
among these microhabitats. In the SSA report, a self-sustaining 
population of eastern massasauga rattlesnakes is defined as one that is 
demographically, genetically, and physiologically robust (a population 
with 50 or more adult females and a stable or increasing growth rate), 
with a high level of persistence (a probability of persistence greater 
than 0.9) given its habitat conditions and the risk or beneficial 
factors operating on it.
    We relied on a population-specific model developed by Faust et al. 
(2011, entire) (hereafter referred to as the Faust model) to assess the 
health of populations across the eastern massasauga rattlesnake's 
range. Faust and colleagues developed a generic, baseline model for a 
hypothetical, healthy (growing) eastern massasauga rattlesnake 
population. Using this baseline model and site-specific information, 
including population size estimate, stressors operating at the site, 
and potential future management changes that might address those 
stressors, the Faust model forecasted the future condition of 57 
eastern massasauga rattlesnake populations over three different time 
spans (10, 25, and 50 years) (for more details on the Faust model, see 
pp. 4-6 in the SSA report). We extrapolated the Faust model results and 
supplemental information gathered since 2011 to forecast the future 
conditions of the other (non-modeled; n = 290) eastern massasauga 
rattlesnake populations.
    At the species level, the eastern massasauga rattlesnake requires 
multiple (redundant), self-sustaining (resilient) populations 
distributed across areas of genetic and ecological diversity 
(representative) to be sustainable over the long term. Using the 
literature on distribution of genetic diversity across the range of 
this species, we identified three geographic ``analysis units'' 
corresponding to ``clumped'' genetic variation patterns across the 
eastern massasauga rattlesnake populations (see Figure 1, below). A 
reasonable conclusion from the composite of genetic studies that exist 
(Gibbs et al. 1997, entire; Andre 2003, entire; Chiucchi and Gibbs 
2010, entire; Ray et al. 2013, entire) is that there are broad-scale 
genetic differences across the range of the eastern massasauga 
rattlesnake, and within these broad units, there is genetic diversity 
among populations comprising the broad units. Thus, we interpret these 
genetic variation patterns to represent areas of unique adaptive 
diversity. We subsequently use these analysis units (western, central, 
and eastern) to structure our analysis of viability with regards to 
representation.

Species' Current Condition

    The documented historical range of the eastern massasauga 
rattlesnake included sections of western New York, western 
Pennsylvania, southeastern Ontario, the upper and lower peninsulas of 
Michigan, the northern two-thirds of Ohio and Indiana, the northern 
three-quarters of Illinois, the southern half of Wisconsin, extreme 
southeast Minnesota, east-central Missouri, and the eastern third of 
Iowa. The limits of the current range of the species resemble the 
boundaries of its historical range; however, the geographic 
distribution of extant localities has been restricted by the loss of 
populations from much of the area within the boundaries of that range. 
As a result of the stressors acting on eastern massasauga rattlesnake 
populations, the resiliency of the eastern massasauga rattlesnake 
across its range and within each of the three analysis units has 
declined from its historically known condition. Rangewide, there are 
558 known historical eastern massasauga rattlesnake populations, of 
which 263 are known to still be extant, 211 are likely extirpated or 
known extirpated, and 84 are of unknown status. For the purposes of our 
assessment, we considered all populations with extant or unknown 
statuses to be currently extant (referred to as presumed extant, n = 
347). Of those 347 populations presumed extant, 40 percent (n = 139) 
are likely quasi-extirpated (have 25 or fewer adult females, which was 
considered by the Faust model to be too small to be viable (see the SSA 
report, pp. 46-47, for details)).
    The rangewide number of presumed extant populations has declined 
from the number that was known historically by 38 percent (and 24 
percent of the presumed extant populations have unknown statuses). Of 
those populations presumed extant, 139 (40 percent) are presumed to be 
quasi-extirpated while 105 (30 percent) are presumed to be 
demographically, genetically, and physiologically robust (see Table 1, 
below). Of these presumed demographically, genetically, and 
physiologically robust populations, 19 (0.5 percent of the presumed 
extant populations) are presumed to have conditions (stressors 
affecting the species at those populations are nonexistent or of low 
impact) suitable for maintaining populations over time and, thus, are 
self-sustaining. The greatest declines in resiliency occurred in the 
western analysis unit, where only 20 populations are presumed extant,

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

         Table 1--The Number of Populations by Status Rangewide
        [DGP = demographically, genetically, and physiologically]
------------------------------------------------------------------------
                                          Number of      Percentage  of
                Status                   populations    presumed  extant
                                          rangewide       populations
------------------------------------------------------------------------
Presumed Extant......................             347  .................
Quasi-extirpated.....................             139               40
DGP robust...........................             105               30
Self-sustaining......................              19                0.5
------------------------------------------------------------------------

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

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[GRAPHIC] [TIFF OMITTED] TR30SE16.026


 Table 2--The Percent Reduction in Extent of Occurrence From Historical
                             to Present Day
------------------------------------------------------------------------
                                                              Percent
                      Analysis unit                          reduction
------------------------------------------------------------------------
Western.................................................              70
Central.................................................              33
Eastern.................................................              26
Rangewide...............................................              41
------------------------------------------------------------------------

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

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losing clusters of populations within the western analysis unit is 
notable; 5 of the 8 population clusters are vulnerable to a 
catastrophic drought. The probability of unit-wide extirpation in the 
western analysis unit is notably higher with D2 frequency rates; 7 of 
the 8 clusters of populations are at risk of D2-level catastrophic 
drought. Thus, the probability of losing most populations within the 
western analysis unit due to a catastrophic drought is high (0.82 
probability of unit-wide extirpation).

Assessment of Threats and Conservation Measures

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

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[GRAPHIC] [TIFF OMITTED] TR30SE16.027

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

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[GRAPHIC] [TIFF OMITTED] TR30SE16.028

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

[[Page 67200]]

10 percent rangewide. In addition, other eastern massasauga rattlesnake 
sites on county- or municipally owned land, as well as on privately 
owned land, could be included in the CCAA through Certificates of 
Inclusion issued by the Michigan Department of Natural Resources (MI 
DNR) prior to the effective date of listing (see DATES, above). The 
CCAA includes management strategies with conservation measures designed 
to benefit the eastern massasauga rattlesnake; these management 
strategies will be implemented on approximately 136,311 acres (55,263 
hectares) of State-owned land. Many of these management actions are 
ongoing, but we do not have site-specific data on these management 
actions to include them in our analysis in the SSA. Nonetheless, we 
determine that the management actions proposed will address some of the 
threats (for example, habitat loss, vegetative succession) impacting 
populations on State lands in Michigan.
    We did not assess the CCAAs under our Policy for Evaluation of 
Conservation Efforts When Making Listing Decisions (PECE policy) (68 FR 
15100; March 28, 2003) because the plans cover only a small part of the 
range of the species, and the conservation measures in the plans will 
not change the overall biological status of the species.
    We have information that at an additional 22 sites (that are not 
covered by a CCAA), habitat restoration or management, or both, is 
occurring; however, we do not have enough information for these sites 
to know if habitat management has mediated the current stressors acting 
upon the populations. The Faust model, however, did include these kinds 
of activities in the projections of trends, and, thus, our future 
condition analyses are based on the assumption that ongoing restoration 
would continue into the future. Lastly, an additional 18 populations 
have conservation plans in place. Although these plans are intended to 
manage for the eastern massasauga rattlesnake, sufficient site-specific 
information is not available to assess whether these restoration or 
management activities are currently ameliorating the stressors acting 
upon the population. Thus, we were unable to include the potential 
beneficial impacts into our quantitative analyses.

Species' Projected Future Condition

    To assess the future resiliency, representation, and redundancy of 
the eastern massasauga rattlesnake, we used the Faust model results to 
predict the number of self-sustaining populations likely to persist 
over the next 10, 25, and 50 years, and extrapolated those proportions 
to the remaining presumed extant populations to forecast the number of 
self-sustaining populations likely to persist at the future time 
scales. We then predicted the change in representation and redundancy. 
The most pertinent results are summarized below. For the full results 
for all time periods, refer to pages 61-76 of the SSA report.
    The projected future resiliency (the number of self-sustaining 
populations) varies across the eastern massasauga rattlesnake's range. 
In the western analysis unit, 83 percent of the modeled populations are 
projected to have a declining trajectory. Furthermore, 94 percent of 
the populations have a low probability of persistence (the probability 
of remaining above the quasi-extirpated threshold of 25 adult females 
is less than 90 percent) by year 25, and, thus, the number of 
forecasted populations likely to be extant declines over time. By year 
50, 18 of the 20 presumed extant populations are projected to be 
extirpated (no individuals remain) or quasi-extirpated, with only 1 
population projected to be self-sustaining. The resiliency of the 
western analysis unit is forecasted to decline over time. The situation 
is similar in the central and eastern analysis units, but to a lesser 
degree. In the central analysis unit, 70 percent of the modeled 
populations are projected to have a declining trajectory and 78 percent 
a low probability of persistence, and thus, by year 50, 180 of the 256 
presumed extant populations are projected to be extirpated or quasi-
extirpated, and 47 populations to be self-sustaining. In the eastern 
analysis unit, 83 percent of the modeled populations are projected to 
have a declining trajectory and 92 percent of the populations are 
projected to have a low probability of persistence, and, thus, by year 
50, 65 of the 71 presumed extant populations are projected to be 
extirpated or quasi-extirpated, and 6 to be self-sustaining. Rangewide, 
54 (16 percent) of the 347 populations that are currently presumed to 
be extant are projected to be self-sustaining by year 50.
    We calculated the future extent of occurrence (representation) for 
the 57 modeled populations (Faust model) and for the populations 
forecasted to persist at years 10, 25, and 50 by using the counties 
occupied by populations to evaluate the proportions of the range 
falling within each analysis unit and the change in spatial 
distribution within each analysis unit. Our results indicate that 
eastern massasauga rattlesnake populations are likely to persist in all 
three analysis units; however, the distribution of the range is 
predicted to contract northeasterly, and the geographic area occupied 
will decline within each analysis unit over time. The results project 
an 80 percent reduction of the area occupied by the eastern massasauga 
rattlesnake rangewide by year 50, with the western analysis unit 
comprising most of the decline (91 percent reduction within the unit). 
These projected declines in extent of occurrence across the species' 
range and within the analysis units suggest that loss of adaptive 
diversity is likely to occur.
    We assessed the ability of eastern massasauga rattlesnake 
populations to withstand catastrophic events (redundancy) by predicting 
the number of self-sustaining populations in each analysis unit and the 
spatial dispersion of those populations relative to future drought 
risk.
    The projected future redundancy (the number and spatial dispersion 
of self-sustaining populations) across the eastern massasauga 
rattlesnake's range varies. In the western analysis unit, the risk of 
analysis-unit-wide extirpations from either a D2 or D3 catastrophic 
drought is high, given the low number of populations forecasted to be 
extant. Coupling this with a likely concurrent decline in population 
clusters (reduced spatial dispersion), the risk of analysis-unit-wide 
extirpation is likely even higher. Thus, the level of redundancy in the 
western analysis unit is projected to decline into the future.
    Conversely, in the eastern analysis unit, there is little to no 
risk of a D2- or D3-level drought, and consequently the probability of 
unit-wide extirpation due to a catastrophic drought is very low. Thus, 
redundancy, from a catastrophic drought perspective, is not expected to 
decline over time in the eastern analysis unit.
    Similarly, in the central analysis unit, there is little to no risk 
of a D3 catastrophic drought. The southern and northern portions of the 
central analysis unit, however, are at risk of a D2-level catastrophic 
drought. Losses of populations in these areas may lead to portions of 
the central analysis unit being extirpated and will also increase the 
probability of analysis-unit-wide extirpation. However, the risk of 
analysis-unit-wide extirpation will likely remain low given the 
presumed persistence of multiple populations scattered throughout low 
drought risk areas. Thus, from a drought perspective, the level of 
redundancy is not likely to be noticeably reduced in the central 
analysis unit (see Figure 4.3 (p. 60) in

[[Page 67201]]

the SSA report for a detailed map). A caveat to this conclusion, 
however, is that the forecasted decline in extent of occurrence 
suggests our data are too coarse to tease out whether the forecasted 
decline in populations will lead to substantial losses in spatial 
distribution, and, thus, the risk of analysis-unit-wide extirpation 
might be higher than predicted. Therefore, the future trend in the 
level of redundancy in the central analysis unit is less clear than for 
either the western analysis unit or the eastern analysis unit.
    Given the loss of populations to date, portions of the eastern 
massasauga rattlesnake's range are in imminent risk of extirpation in 
the near term. Specifically, our analysis suggests there is a high risk 
of extirpation of the western analysis unit and of southern portions of 
the central and eastern analysis units within 10 to 25 years. Although 
self-sustaining populations are expected to persist, loss of other 
populations within the central and eastern analysis units are expected 
to continue as well, and, thus, those populations are at risk of 
extirpation in the future. These losses have led to reductions in 
resiliency and redundancy across the range and may lead to 
irreplaceable loss of adaptive diversity across the range of the 
eastern massasauga rattlesnake, thereby leaving the eastern massasauga 
rattlesnake less able to adapt to a changing environment into the 
future. Thus, the viability of the eastern massasauga rattlesnake has 
declined and is projected to continue to decline over the next 50 
years.
    The reader is directed to the SSA report for a more detailed 
discussion of our evaluation of the biological status of the eastern 
massasauga rattlesnake and the influences that may affect its continued 
existence. Our conclusions are based upon the best available scientific 
and commercial data.

Summary of Changes From the Proposed Rule

    In preparing this final rule, we reviewed and fully considered 
comments from the public and peer reviewers on the proposed rule. This 
final rule incorporates minor changes to our proposed listing based on 
the comments we received, as discussed below in Summary of Comments and 
Recommendations, and newly available scientific data. The SSA report 
was updated based on additional data provided, primarily by State fish 
and wildlife agencies. These data allowed us to refine site-specific 
information and improve our understanding of status for several 
populations. Thus, the final numerical results in the second version of 
the SSA report are slightly different from those in the first version 
that was used for the proposed rule. None of the new information we 
received changed our determination in this final rule that the eastern 
massasauga rattlesnake is a threatened species.

Summary of Comments and Recommendations

    In the proposed rule published on September 30, 2015 (80 FR 58688), 
we requested that all interested parties submit written comments on the 
proposal by November 30, 2015. We also contacted appropriate Federal 
and State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. 
Newspaper notices inviting general public comment were published in USA 
Today. We did not receive any requests for a public hearing. All 
substantive information provided during the comment period has either 
been incorporated directly into this final determination or is 
addressed below.

Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited review of the SSA report from 32 
knowledgeable individuals with scientific expertise that included 
familiarity with eastern massasauga rattlesnake and its habitat, 
biological needs, and threats. We received responses from 21 of the 
peer reviewers.
    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding the eastern massasauga 
rattlesnake. Peer reviewer comments are addressed in an appendix to the 
SSA report, and in the SSA itself, as appropriate.

Federal Agency Comments

    (1) Comment: The U.S. Forest Service (Huron-Manistee National 
Forest) stated that there is a need to differentiate between upland and 
lowland habitat in regard to seasonal restrictions on prescribed 
burning within management units of the Huron-Manistee National Forest 
where eastern massasauga rattlesnakes occur. The Forest Service cited a 
conservation plan (Kingsbury 2002) that stated that upon emerging from 
hibernation, most eastern massasauga rattlesnakes are lethargic and 
constrained by cool temperatures, and so remain in the vicinity of 
their wetland burrows through mid-May. They also recommended that the 
Service provide a framework for allowing prescribed fire in upland 
habitats until May 15 in ways that do not violate section 9 of the Act.
    Our Response: We agree that the best available information suggests 
that, upon emerging from hibernation, most eastern massasauga 
rattlesnakes do remain lethargic, and stay in the vicinity of their 
burrows (usually located in wetlands) for up to several weeks, and 
during that time they are especially vulnerable to risks from 
predation, prescribed fire, or other sources of mortality. Prior to 
emergence from hibernation, when eastern massasauga rattlesnakes still 
have some protection in the confines of the burrows in which they 
hibernate, they are relatively protected from sources of mortality that 
would take place on the surface. Thus, risk of mortality caused by 
prescribed fire is greatest when snakes are above ground (Durbian 2006, 
pp. 329-330; Cross et al. 2015, pp. 346-347). Many populations of 
eastern massasauga rattlesnakes are small, and in such populations, 
loss of only a few individuals can have significant impacts (Seigel and 
Sheil 1999, p. 20), and prescribed fire was one of the most prominent 
stressors we identified in the SSA for the eastern massasauga 
rattlesnake.
    Unfortunately, within the range of this species, unpredictable late 
winter or spring weather patterns, and resulting ground conditions 
(such as humidity, snow cover, prevailing winds), provide a number of 
constraints to land managers who need to implement prescribed fires to 
maintain habitats. Thus, we are also aware that a challenge to managing 
occupied eastern massasauga habitat with prescribed fire is determining 
the best time to apply fire without risking mortality. At most of the 
known sites within the range of the eastern massasauga rattlesnake that 
were included in our analysis, populations are small and vulnerable to 
additive mortality (any mortality beyond that which would be expected 
from predation or other natural factors), as could occur from poorly 
timed prescribed fire. While land managers often request ``cutoff'' 
dates before which burns can be assumed to be safe, natural variation 
in weather cycles can affect the dates when snakes emerge from 
hibernation, with fluctuations of 1 to 3 weeks not being uncommon. In 
addition to the conservation plan (Kingsbury 2002, entire) provided by 
the Forest Service, and that was also reviewed in our SSA, we discussed 
emergence biology of eastern massasauga rattlesnakes at the latitude of 
the Huron-Manistee National Forest with Dr. Bruce Kingsbury (2016, 
pers. comm.). Kingsbury shared additional

[[Page 67202]]

observations of emerging eastern massasauga rattlesnakes in northern 
Michigan since his 2002 conservation plan; he added that his 
observations since 2002 now indicate that many eastern massasauga 
rattlesnakes that emerge from hibernation in central and northern 
Michigan in April begin to disperse into adjacent habitats as early as 
May 1. Because of this, Kingsbury cautioned against reliance on a firm 
calendar date as a rule by which to plan prescribed fires if 
unintentional mortality is to be avoided. Instead, he urged land 
managers to use predictive models to help forecast when eastern 
massasauga rattlesnakes are most likely to emerge from hibernacula in a 
given region and year. We thus cannot provide the framework requested 
by the Forest Service to conclude that use of prescribed fire before 
May 15 will never result in ``take'' of the eastern massasauga 
rattlesnake.
    Because the issue of using prescribed fire as a tool for 
maintaining suitable habitat for eastern massasauga rattlesnakes is so 
important, but also understandably controversial (due to the potential 
for additive mortality), the Service funded a study (from 2010 through 
2015) of rangewide phenology (relation between climate and periodic 
biological phenomena) of the species to better understand the factors 
influencing ingress and egress from hibernation. Preliminary results of 
that study indicate that emergence of eastern massasauga rattlesnakes 
from hibernation at sites throughout the range is predictable based on 
rising subsurface soil temperatures (King 2016, pers. comm.). In 
addition, regional weather stations maintained by the National Oceanic 
and Atmospheric Administration (NOAA) monitor soil temperatures at the 
strata crucial for predicting emergence. Near real-time data generated 
at these weather stations also are accessible to the public, and when 
stations are located near extant populations of the eastern massasauga 
rattlesnake, these could be used by land managers to determine whether 
emergence from hibernation is near, and thus whether burns should be 
avoided for the remainder of the active season. As further analyses are 
completed and the results of the study are made available, we will work 
cooperatively with interested land managers to incorporate the results 
into useful burn plans. Federal land management agencies, such as the 
Forest Service, that use prescribed fire to manage habitats occupied by 
the eastern massasauga rattlesnake should consult with the Service as 
provided by section 7(a)(2) of the Act. In addition, private and State 
land managers can work with the Service to develop plans and determine 
if permits are appropriate to conduct recovery efforts.

Comments From States

    (2) Comment: A State fish and wildlife management agency 
(Pennsylvania Boat and Fish Commission (PBFC)), a State advisory group 
(Pennsylvania Biological Survey), and a private individual stated that 
the eastern massasauga rattlesnake has experienced a large range 
reduction in Pennsylvania, and current surveys confirm that extant 
populations remain at only three sites in the State. They further 
commented that the remaining populations are isolated from one another 
and subject to continued threats of habitat alteration, persecution, 
and illegal collecting.
    Our Response: We thank the commenters for the detailed information. 
These data corroborate our analysis. We considered the continued 
decline of the eastern massasauga rattlesnake in Pennsylvania, as well 
as other States in the range of the eastern massasauga rattlesnake, in 
the SSA, and agree that the best available information indicates that 
this species is declining in Pennsylvania. Based on the status 
information throughout the species' range and continuing threats to the 
species, we determined that the eastern massasauga rattlesnake is 
likely to become in danger of extinction throughout its range within 
the foreseeable future, and thus are listing it as a threatened 
species.
    (3) Comment: A State fish and wildlife management agency (PBFC), a 
State advisory group (Pennsylvania Biological Survey), and several 
private individuals commented that listing would benefit the eastern 
massasauga rattlesnake by encouraging recovery planning, surveys, 
outreach and education to the public, and other rangewide conservation 
efforts.
    Our Response: After listing the species, the Service will continue 
to work closely with State conservation agencies, nongovernmental 
organizations (NGOs), and other willing partners throughout the range 
of the species to determine practical and comprehensive actions and 
outreach to conserve and recover the eastern massasauga rattlesnake.
    (4) Comment: Two State fish and wildlife management agencies (PBFC 
and Wisconsin Department of Natural Resources (WI DNR)) commented that 
the Service incorporated data and comments provided by herpetologists 
from the commenter's staff on the SSA, and that the SSA represents the 
best available information on the eastern massasauga rattlesnake in 
their State.
    Our Response: We thank the staffs of PBFC and WI DNR, as well as 
other State and county conservation agencies and NGOs, for assisting us 
in compiling the best available information on the current distribution 
and status of the eastern massasauga rattlesnake throughout its range 
and for providing review of the SSA report.
    (5) Comment: A State fish and wildlife management agency (PBFC) and 
the Western Pennsylvania Conservancy (an NGO) commented that an Eastern 
Massasauga Species Action Plan for Pennsylvania was compiled in 2011, 
to prioritize and guide research and conservation actions at the 
State's extant and presumed extant sites, and noted recent conservation 
and management actions under that plan. A copy of the plan was 
provided.
    Our Response: We thank the commenters for providing a copy of the 
plan, and we incorporated actions outlined in the plan into our revised 
SSA report. When the species is listed (see DATES, above), conservation 
and recovery planning will involve multiple stakeholders. In addition, 
relatively new tools (such as spatially explicit habitat models or 
collaborative processes such as Landscape Conservation Design) are 
available to plan recovery actions at landscape scales, and to involve 
multiple stakeholders in the planning process. After listing takes 
effect (see DATES, above), the Service will continue to work closely 
with State conservation agencies, NGOs, and other willing partners to 
determine practical and comprehensive conservation actions for the 
eastern massasauga rattlesnake.
    (6) Comment: A State fish and wildlife management agency (PBFC) 
stated that the loss of resiliency and redundancy across the species' 
range within Pennsylvania leaves the eastern massasauga rattlesnake 
vulnerable and with little adaptability to future changes in its 
environment. In addition, this commenter stated that, given the small 
part of the eastern massasauga rattlesnake's range that is represented 
in Pennsylvania, the conservation actions undertaken within the State 
at these vulnerable, isolated sites are projected to have little impact 
on the overall persistence of the species without a more comprehensive, 
regional approach.
    Our Response: We agree that loss of redundancy and loss of 
resiliency across the range of the eastern massasauga rattlesnake are 
of concern. As stated in the SSA report for the eastern

[[Page 67203]]

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

[[Page 67204]]

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

[[Page 67205]]

based on the species' range and not the three analysis units.
    Our Response: We identified and delineated the analysis units to 
assess the historical, current, and future representation of the 
species. Representation is an indicator of the ability of the species 
to respond to physical (for example, habitat, climate) and biological 
(for example, new diseases, predators, competitors) changes in its 
environment. The intent of the analysis units is to capture the breadth 
of adaptive diversity (genotypic (genetic makeup) and phenotypic 
(physical traits) diversity of the species). We evaluated available 
genetic and ecological information to identify areas of unique or 
differing genotypic and phenotypic diversity. We did not find any 
compelling ecological differences, but did find strong evidence of 
genetic variation across the range. Data indicate that the eastern 
massasauga rattlesnake shows high levels of genetic variation 
(populations can be genetically distinguished from each other) at 
regional and local scales. The synthesis of this genetic data supports 
delineating, on the basis of genetic differentiation, the three broad 
regions identified by Ray et al. (2013, entire). Although several 
studies showed detectable genetic differences among populations within 
these three broad areas, we did not have sufficient information to 
delineate smaller-scale units. Thus, we assessed the distribution among 
and within these three geographic units to evaluate changes in eastern 
massasauga rattlesnake representation from historical condition to the 
present and future. These analysis units were identified for purposes 
of evaluating representation in the SSA, and are not, at this point, 
intended to represent recovery units as might be identified during 
recovery planning. Any future recovery planning effort will use the 
best available information to promote the conservation and survival of 
the species.
    (17) Comment: The New York Department of Environmental Conservation 
(NYDEC) commented that the species is listed as State endangered in New 
York, and that due to the limited range and vulnerability of 
populations, the State does not anticipate delisting the species at any 
point in the future.
    Our Response: We considered the current status of the eastern 
massasauga rattlesnake in New York, as well as other States in the 
range of the eastern massasauga rattlesnake, in the SSA. We agree that 
the best available information indicates that only two populations of 
this species occur in New York State, and thus its conservation status 
is of concern there.
    (18) Comment: NYDEC stated that the two populations in the State 
occur on lands under conservation protection: One is owned by a private 
conservation organization, and the other is a State Wildlife Management 
Area. NYDEC further commented that it has been successful at managing 
for eastern massasauga rattlesnakes at the State-owned site, and 
believes that under continued management, the species will continue to 
thrive at that site. Thus, NYDEC encourages the Service to endorse 
active habitat management practices that promote habitat for the 
species.
    Our Response: The efforts of States and other partners to benefit 
the eastern massasauga rattlesnake are important, and we agree that 
habitat management activities to maintain appropriate vegetative 
structure for the eastern massasauga rattlesnake are crucial to its 
continued survival. However, certain management activities (for 
example, prescribed fire) are also known to be important stressors to 
the species, especially where population sizes are small or when timing 
of the management action increases risk (for example, just after snakes 
emerge from hibernation). We will continue to work closely with our 
partners in State and local agencies, NGOs, and any other parties 
interested in conserving this species to investigate best management 
practices and the tradeoffs between management and potential mortality 
to the rattlesnakes.
    (19) Comment: NYDEC requested that the Service include a 4(d) rule 
to exempt some habitat management practices, such as woody vegetation 
removal, when conducted at a time and scale that makes adverse impacts 
to the eastern massasauga rattlesnake unlikely.
    Our Response: We agree that active habitat management for the 
eastern massasauga rattlesnake will be crucial to long-term maintenance 
and recovery of existing populations. However, we believe issuance of a 
4(d) rule would not be required to allow such management activities for 
two reasons. First, management actions may take place on a case-by-case 
basis, and we would like to learn more about how to lessen the risk of 
eastern massasauga rattlesnake mortality while still allowing 
appropriate habitat management to occur. Second, vegetation management 
actions that take place at certain times of the year when the snakes 
are not active (for example, during winter when snakes are hibernating 
underground) would not affect the species and, thus, do not require a 
4(d) rule. The Act allows flexibility for us to consider a range of 
recovery actions following listing, and we will work with local and 
State partners to determine and implement actions that have the most 
benefit to the species.

Public Comments

    (20) Comment: An NGO (the Western Pennsylvania Conservancy (WPC)) 
commented that they continue to work closely with PBFC on eastern 
massasauga rattlesnake conservation efforts, including implementation 
of the Eastern Massasauga Species Action Plan. In 2009-2010, habitat 
management plans were developed for eight private landowners in areas 
where eastern massasauga rattlesnakes are known to occur. WPC has 
implemented some of the management plans with the help of PBFC, the 
Pennsylvania Wildlife Commission, and the Pennsylvania Department of 
Conservation and Natural Resources, including habitat restoration 
activities funded by small foundation grants over the past 5 years.
    Our Response: Following listing (see DATES, above), we will 
continue to work with our partners in State agencies as well as with 
local agencies, NGOs, and other interested parties to implement 
conservation measures for this species. Existing efforts to conserve 
the species or local planning documents, like those mentioned by the 
commenter, will be valuable in developing regional or rangewide 
recovery efforts.
    (21) Comment: One commenter stated that it is difficult to achieve 
on-the-ground conservation and restoration for the eastern massasauga 
rattlesnake and that land protection efforts are slow and opportunities 
are limited.
    Our Response: Limited resources are often a challenge in 
conservation. Following listing (see DATES, above), we will continue to 
explore opportunities to partner with State and local conservation 
agencies, NGOs, and other interested parties to leverage resources and 
find cooperative solutions to such challenges for the eastern 
massasauga rattlesnake.
    (22) Comment: One commenter stated that not all factors that may 
contribute to the decline of the species were fully explored in the 
SSA. In particular, the commenter noted that, while the proposed rule 
acknowledged climate change as a factor exacerbating the threats to 
this species, it did not provide a quantitative analysis of the impacts 
nor fully account for such uncertainty.
    Our Response: A recently published climate change vulnerability 
analysis for the eastern massasauga rattlesnake (Pomara et al. 2015, 
entire) suggests that populations in the southwestern parts of

[[Page 67206]]

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

[[Page 67207]]

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

[[Page 67208]]

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

[[Page 67209]]

information on the historical occurrence of the eastern massasauga 
rattlesnake on their land holdings, and we have added it to information 
gathered from the Natural Heritage Database as provided by the Indiana 
Department of Natural Resources so that it may augment our data on the 
species.
    (39) Comment: One commenter stated that there is no evidence that 
the eastern massasauga rattlesnake existed in Missouri, and that 
populations in eastern Missouri should be considered as western 
massasauga rattlesnakes, a different species. The commenter stated that 
populations of the eastern massasauga rattlesnakes occurring east of 
the Mississippi River warrant protection.
    Our Response: In evaluating the taxonomy and distribution of the 
eastern massasauga rattlesnake, we considered the best available 
scientific information (see pages 8-9 of the SSA report). While recent 
genetic studies showed that extant populations in central and 
northwestern Missouri belong to the western massasauga rattlesnake 
(Sistrurus tergeminus), no useful tissues from snakes in extreme 
eastern Missouri (St. Louis and Warren Counties) were available to the 
researchers for inclusion in the genetic studies because those 
populations are likely extirpated. This was confirmed during 
coordination between the Service and the responsible State fish and 
wildlife management agency (Missouri Department of Conservation). 
However, published studies on phenotypic variation (especially color 
pattern) of massasauga rattlesnakes from throughout Missouri--including 
the historical, but now likely extirpated populations in extreme 
eastern Missouri--indicate that the latter populations could be 
phenotypically included within the eastern massasauga rattlesnake. 
Recently extirpated, historical populations of the eastern massasauga 
rattlesnake were known from the adjacent part of Illinois, less than 19 
miles (30 kilometers) from the historical eastern Missouri populations. 
In addition, genetic studies of massasauga rattlesnakes in Iowa 
indicate that the eastern massasauga genotype is present there (though 
these are also of likely past hybridization), well west of the 
Mississippi River. In the absence of better information on the 
taxonomic identity of the likely extirpated massasauga populations in 
extreme eastern Missouri, we have included those populations within the 
historical range of the eastern massasauga rattlesnake.
    (40) Comment: One commenter stated that the eastern massasauga 
rattlesnake is more prevalent than MI DNR or the Service estimate and 
that the species is common in northern Michigan.
    Our Response: It is widely recognized that Michigan still harbors a 
greater number of extant populations of the eastern massasauga 
rattlesnake than any of the other nine States and the one Canadian 
Province where the species occurred historically. We coordinated with 
our partner State fish and wildlife agencies, consulted the most 
current information from Natural Heritage Databases, and solicited 
information from species experts for each State and for Ontario to 
compile the most current data on the species. In addition to these 
scientific sources, we sought out public comment and data through the 
proposed listing rule's public comment period. In Michigan 
specifically, MNFI houses the Natural Heritage Database; they, among 
others, provided input on the Michigan populations. Based on these 
data, historically and currently, Michigan harbors a greater number of 
extant populations than any of the other nine States and Ontario. There 
are 259 known populations of eastern massasauga rattlesnake in 
Michigan; this is 46 percent of all known populations rangewide. Of 
these, 158 (61 percent) are believed to persist today and another 47 
have unknown status; the Michigan populations represent 59 percent of 
all known extant populations rangewide. Thus, compared to other 
localities, the eastern massasauga rattlesnake was historically and 
continues to be more prevalent in Michigan than in any other State. We 
acknowledge that there may still be some undocumented populations 
remaining, especially in Michigan. We recommend that individuals with 
specific knowledge of populations contact MNFI to ensure the locations 
of eastern massasauga rattlesnake are known.
    (41) Comment: Several commenters stated that the species should be 
listed as endangered rather than threatened, but did not provide 
further rationale or new evidence in support of this recommendation.
    Our Response: For reasons discussed in the Determination section of 
this final rule, the Service has determined that the eastern massasauga 
rattlesnake meets the Act's definition of a threatened species, rather 
than an endangered species.

Determination

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. Under section 4(a)(1) of the Act, we may list a species based 
on: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. Listing actions may be warranted based on any of 
the above threat factors, singly or in combination.
    We have carefully assessed the best scientific and commercial data 
available regarding the past, present, and predicted future condition 
of the eastern massasauga rattlesnake and how threats are affecting the 
species now and into the future. The species faces an array of threats 
that have and will likely continue (often increasingly) to contribute 
to declines at all levels (individual, population, and species). The 
loss of habitat was historically, and continues to be, the threat with 
greatest impact to the species (Factor A), either through development 
or through changes in habitat structure due to vegetative succession. 
Disease, new or increasingly prevalent, is another emerging and 
potentially catastrophic threat to eastern massasauga rattlesnake 
populations (Factor C) that is likely to affect the species in the 
foreseeable future. As population sizes decrease, localized impacts, 
such as collection and persecution of individuals, also increases the 
risk of extinction (Factor B). These stressors are chronic and are 
expected to continue with a similar magnitude of impact into the 
future. Additionally, this species is vulnerable to the effects of 
climate change through increasing intensity of winter droughts and 
increasing risk of summer floods (Factor E), particularly in the 
southwestern part of its range (Pomera et al. undated, unpaginated; 
Pomera et al. 2014, pp. 95-97).
    Some conservation actions (for example, management of invasive 
species and woody plant encroachment, timing prescribed fires to avoid 
the active season) are currently in place, and provide protection and 
enhancement to some eastern massasauga rattlesnake populations (see pp. 
43-45 in the SSA report for a full discussion). However, our analysis 
projects that eastern massasauga rattlesnake populations will continue 
to decline even if current conservation measures are continued into the 
future. As a result of these factors, the number and health of eastern 
massasauga rattlesnake populations are anticipated to decline across 
the species' range,

[[Page 67210]]

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

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.

[[Page 67211]]

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

[[Page 67212]]

habitat conservation plans (HCPs), or other species conservation 
planning efforts if new information available at the time of these 
planning efforts calls for a different outcome.

Prudency Determination

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

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. The recognition of a species, through listing, results in 
public awareness, and

[[Page 67213]]

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

[[Page 67214]]

available information, the following activities may potentially result 
in a violation of section 9 of the Act; this list is not comprehensive:
    (1) Development of land or the conversion of native land to 
agricultural land, including the construction of any related 
infrastructure (for example, roads, bridges, railroads, pipelines, 
utilities) in occupied eastern massasauga rattlesnake habitat;
    (2) Certain dam construction: In an area where the dam alters the 
habitat from native land types (for example, grassland, swamp, fen, 
bog, wet prairie, sedge meadow, marshland, peatland, floodplain forest, 
coniferous forest) causing changes in hydrology at hibernacula or where 
the dam causes fragmentation that separates snakes from hibernacula or 
gestational sites;
    (3) Post-emergent prescribed fire: Prescribed burns to control 
vegetation that are conducted after snakes have emerged from their 
hibernacula and are thus exposed to the fire;
    (4) Post-emergent mowing for habitat management: Mowing of 
vegetation after snakes have emerged from hibernacula can cause direct 
mortality by contact with blades or being run over by tires on mower;
    (5) Water level manipulation: Flooding or hydrologic drawdown 
affecting eastern massasauga rattlesnake individuals or habitat, 
particularly hibernacula;
    (6) Certain research activities: Collection and handling of eastern 
massasauga rattlesnake individuals for research that may result in 
displacement or death of the individuals; and
    (7) Poaching, collecting, or persecuting individuals.
    Based on the best available information, the following actions are 
unlikely to result in a violation of section 9 of the Act, if these 
activities are carried out in accordance with existing regulations and 
permit requirements; this list is not comprehensive:
    (1) Pre-emergent fire: Prescribed burns to control vegetation 
occurring prior to eastern massasauga rattlesnake emergence from 
hibernacula (typically in late March to early April); and
    (2) Pre-emergent mowing or other mechanical vegetation removal: 
Mowing or cutting of vegetation prior to eastern massasauga rattlesnake 
emergence from hibernacula.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Chicago 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Required Determinations

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as an endangered or 
threatened species under the Endangered Species Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at https://www.regulations.gov and upon request from the 
Chicago Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this final rule are staff members of the 
Midwest Regional Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.


0
2. Amend Sec.  17.11(h) by adding an entry for ``Rattlesnake, eastern 
massasauga'' to the List of Endangered and Threatened Wildlife in 
alphabetical order under REPTILES to read as follows:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                      Listing citations and
          Common name            Scientific name    Where listed       Status            applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
           Reptiles
 
                                                  * * * * * * *
Rattlesnake, eastern            Sistrurus         Wherever found..  T            [Insert Federal Register
 massasauga.                     catenatus.                                       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