On March 5, 2012, FinCEN issued an ANPRM seeking comments from interested parties on customer due diligence requirements for financial institutions. 1 FinCEN received several comments on the ANPRM, including several requesting that FinCEN extend the deadline for comments in order to allow interested parties more time in which to comment on the specific issues and questions raised in the ANPRM.

In light of the fact that an extension of the comment period will not impede any imminent rulemaking and will allow additional interested parties to provide comments, FinCEN has determined that it is appropriate in this instance to extend the comment period for an additional thirty (30) days. Thus, comments on the ANPRM may be submitted on or before June 11, 2012.

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0331), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online via http://www.regulations.gov or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number USCG-2012-0331 in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number USCG-2012-0331 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not plan to hold a public meeting at this time, but you may submit a request for one on or before June 11, 2012 using one of the four methods specified under ADDRESSES . Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

Fireworks displays create hazardous conditions for the maritime public due to loud noises, falling debris, and explosions, as well as the heavy vessel traffic congregating near the displays. The establishment of a safety zone helps ensure the safety of the maritime public by prohibiting persons and vessels from risks associated with fireworks displays.

This proposed rule would establish a temporary safety zone at the entrance of Yaquina Bay in Newport, OR. This event will be held on Saturday, June 9, 2012 from 9 p.m. to 11 p.m. The safety zone would extend 300 feet in all directions from the discharge site which is located on the south side of the channel at 44-36′46.86″ N 124-04′10.68″ W.

Geographically this safety zone would cover all waters of Yaquina Bay extending 300 feet in all directions from the discharge site. All persons and vessels would be prohibited from entering the safety zone during the date and time this proposed rule is effective unless authorized by the Captain of the Port Columbia River or his designated representative.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The Coast Guard has made this determination based on the fact that the safety zone created by this rule will not significantly affect the maritime public because the federal navigation channel will remain open and vessels may still proceed around the perimeter of the safety zone.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners and operators of vessels intending to operate in the area covered by the safety zone. The safety zone would not have a significant economical impact on a substantial number of small entities because the federally maintained navigation channel would remain open for use during the display and the safety zone would only be in effect for 2 hrs in the evening when vessel traffic is low. We will send out a broadcast to notify mariners 2 hrs before the effective period and the Coast Guard will also publish advisories in the Local Notice to Mariners. Maritime traffic will be able to schedule their transits around this safety zone.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact ENS Ian McPhillips, Waterways Management Division, Marine Safety Unit Portland, Coast Guard; telephone 503-240-9319, email Ian.P.Mcphillips@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for Federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for Federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES . This rule is categorically excluded, under figure 2-1, paragraph (34) (g), of the instruction. This proposed rule involves the creation of a safety zone. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

Demurrage is a charge for detaining railroad-owned rail freight cars for loading or unloading beyond a specified amount of time (called “free time”). Demurrage has compensatory and penalty functions. It compensates rail carriers for the use of railroad equipment, and by penalizing those who detain rail cars for too long, it encourages prompt return of rail cars into the transportation network. Because of these dual roles, demurrage is statutorily recognized as an important tool in ensuring the smooth functioning of the rail system. See 49 U.S.C. 10746.

Historical Regulation of Demurrage. Since the earliest days of railroad regulation, parties have had disputes about who, if anyone, should have to pay demurrage. Certain principles for allocating the liability of intermediaries for holding carrier equipment became established over time and were reflected in agency and court decisions. 1 After reviewing recent court decisions, however, we believe that it is appropriate to revisit the matter and to consider whether the Board's policies should be revised.

Demurrage collection cases may only be brought in court, and thus much of the law governing the imposition of demurrage liability has been established judicially. However, the Interstate Commerce Act, as amended by the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 803 (1995) (ICCTA), also provides that demurrage is subject to Board regulation. Specifically, 49 U.S.C. 10702 requires railroads to establish reasonable rates and transportation-related rules and practices, and 49 U.S.C. 10746 requires railroads to compute demurrage and to establish demurrage-related rules “in a way that fulfills the national needs related to” freight car use and distribution and that will promote an adequate car supply. In the simplest case, demurrage is assessed on the “consignor” (the shipper of the goods) for delays in loading cars at origin and on the “consignee” (the receiver of the goods) for delays in unloading cars and returning them to the carrier at destination. 2

This agency has long been involved in resolving demurrage disputes, both as an original matter and on referral from courts hearing railroad complaints seeking recovery of charges. 3 The disputes between railroads and parties that originate or terminate rail cars can involve relatively straightforward application of the carrier's tariffs to the circumstances of the case. Complications can arise, however, in cases involving warehousemen or other “third-party intermediaries” who handle the goods but have no property interest in them. A consignee that owned the property being shipped had common-law liability (for both freight charges and demurrage) when it accepted cars for delivery, 4 but warehousemen typically are not owners of the property being shipped (even though, by accepting the cars, they are in a position to facilitate or impede car supply). Under the legal principles that developed, in order for a warehouseman to be subject to demurrage or detention charges, there had to be some other basis for liability beyond the mere fact of handling the goods shipped. 5

What became the most important factor under judicial and agency precedent was whether the warehouseman was named the consignee on the bill of lading. 6 Thus, our predecessor, the Interstate Commerce Commission (ICC), held that a tariff  7 may not lawfully impose such demurrage charges on a warehouseman who is not the owner of the freight, who is not named as a consignor or consignee in the bill of lading, and who is not otherwise party to the contract of transportation. 8

Recently, a new question arose: who should bear liability when an intermediary that accepts rail cars and detains them too long is named as consignee in the bill of lading, but asserts either that it did not know of its consignee status or that it affirmatively asked the shipper not to name it consignee? On that issue, the courts of appeals have split. 9 The legal debate and resulting conflicting opinions prompted the Board to reexamine its existing policy and to assist in providing clarification for the industry.

Conflict Among the Circuits. In Groves, the United States Court of Appeals for the Eleventh Circuit looked to contract principles and concluded that a party shown as a consignee in the bill of lading is not in fact a consignee, and hence is not liable for demurrage charges, unless it expressly agrees to the terms of the bill of lading describing it as a consignee, “or at the least, [is] given notice that it is being named as a consignee in order that it might object or act accordingly.”  10 On virtually identical facts, the United States Court of Appeals for the Third Circuit held in Novolog that “recipients of freight who are named as consignees on bills of lading are subject to liability for demurrage charges arising after they accept delivery unless they act as agents of another [party] and comply with the notification procedures in [the] consignee-agent liability provision [of] 49 U.S.C. 10743(a)(1).”  11 The statutory notice provision of section 10743(a)(1), which is also referred to in Groves, states, among other things, that a person receiving property as an agent for the shipper or consignee will not be liable for “additional rates” that may be found due beyond those billed at the time of delivery, if the receiver notifies the carrier in writing that it is not the owner of the property, but rather is only an agent for the owner. 12

After reviewing these recent court decisions, the Board determined that it needed to revisit its demurrage precedent to consider whether the agency's policies accounted for current statutory provisions and commercial practices. Thus, on December 6, 2010, the Board published an Advance Notice of Proposed Rulemaking (ANPR)  13 that raised a series of specific questions about how the demurrage process works and sought public input on whether the Board should issue a new rule that does not follow the reasoning of Novolog or Groves, but that instead would provide that demurrage charges may apply when cars are accepted by a party with notice of the carrier's demurrage charges. Shortly thereafter, the United States Supreme Court denied a request that it review the split in the circuits. Norfolk S. Ry. v. Groves, 131 S.Ct. 993 (2011) (mem.).

Additional information is contained in the Board's decision. The full decision is available on the Board's Web site at www.stb.dot.gov.

This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

It is ordered:

1. Comments are due by June 25, 2012; replies are due by July 23, 2012.

2. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.

3. This decision is effective on its service date.

For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend title 49, chapter X, subchapter D, of the Code of Federal Regulations by adding part 1333 to read as follows:

Background

Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq. ) requires that, for any petition to revise the Federal Lists of Threatened and Endangered Wildlife and Plants that contains substantial scientific or commercial information that listing a species may be warranted, we make a finding within 12 months of the date of receipt of the petition. In this finding, we will determine that the petitioned action is: (1) Not warranted, (2) warranted, or (3) warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants. Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, that is, requiring a subsequent finding to be made within 12 months. We must publish these 12-month findings in the Federal Register .

On July 30, 2007, we received a petition from Forest Guardians (now WildEarth Guardians), requesting that the Service consider for listing as either endangered or threatened 206 species in our Mountain-Prairie Region ranked as G1 or G1G2 by the organization NatureServe (except those that are currently listed, proposed for listing, or candidates for listing). The Arapahoe snowfly was 1 of the 206 species included in the petition. On March 19, 2008, WildEarth Guardians filed a complaint indicating that the Service failed to make a preliminary 90-day finding on their two multiple-species petitions—one for mountain-prairie species, and one for southwestern species. We subsequently published two 90-day findings, including one on February 5, 2009 (74 FR 6122) for the mountain-prairie species. That finding concluded that the petition did not present substantial scientific or commercial information indicating that listing may be warranted for 165 of the 206 species, including the Arapahoe snowfly.

On April 6, 2010, we received a petition, of the same date, from The Xerces Society for Invertebrate Conservation, Dr. Boris Kondratieff, Save the Poudre: Poudre Waterkeeper, Cache la Poudre River Foundation, WildEarth Guardians, and Center for Native Ecosystems, requesting that the Arapahoe snowfly be listed as endangered and that critical habitat be designated under the Act. Supporting information regarding the species' taxonomy and ecology, population distribution and status, and actual and potential causes of decline was included in the petition. We acknowledged the receipt of the petition in a letter to Scott Hoffman Black and the other petitioners dated April 13, 2010. In that letter, we stated that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not warranted. We also stated that, due to previously received petitions, court orders, other listing actions with statutory deadlines, and judicially approved settlement agreements that would take the remainder of Fiscal Year 2010 to complete, we anticipated responding to the petition in Fiscal Year 2011. On December 1, 2010 the petitioners filed a Notice of Intent to sue regarding our failure to complete a 90-day finding concerning their April 6, 2010, petition to list the Arapahoe snowfly.

On April 26, 2011, we published a 90-day finding for the Arapahoe snowfly (76 FR 23256). In that finding, we found that the petition presented substantial information to indicate that listing the species may be warranted. On June 27, 2011, we received a Notice of Intent to sue from Mile High Law Office for not completing a 12-month finding on the April 6, 2010, petition to list the species. This Notice of Intent to sue was submitted on behalf of WildEarth Guardians, Save the Poudre: Poudre Waterkeeper, Center for Native Ecosystems, and Colorado State University. On September 9, 2011, a settlement agreement with WildEarth Guardians was approved in U.S. District Court that included a multiyear listing workplan for several species, including a commitment to complete a 12-month finding for the Arapahoe snowfly in Fiscal Year 2012. This notice constitutes the 12-month finding on the April 6, 2010, petition to list the Arapahoe snowfly as endangered and fulfills our commitment for the Arapahoe snowfly under the September 9, 2011, settlement agreement.

The Arapahoe snowfly is an insect in the order Plecoptera (stonefly), the family Capniidae (small winter stonefly), and the genus Capnia (snowfly) (NatureServe 2009, p. 1; Integrated Taxonomic Information System 2010, p. 1). In North America, there are 674 known species of stoneflies, including 56 species of Capnia (Stark et al. 2009, pp. 3-4). The nearest relatives of the Arapahoe snowfly are the Utah snowfly ( C. utahensis ) and the Sequoia snowfly ( C. sequoia ), both of which are a minimum of 400 miles (mi) (640 kilometers (km)) from the known locality for Arapahoe snowfly (Nelson and Kondratieff 1988, p. 79). The Arapahoe snowfly was first discovered in 1986 and identified as a new species in 1988 (Nelson and Kondratieff 1988, p. 77). The scientific community accepts the current taxonomic status of the Arapahoe snowfly (Nelson and Kondratieff 1988, p. 77; Nelson and Baumann 1989, p. 314; Stark et al. 2009, p. 3; Integrated Taxonomic Information System 2010, p. 1). Consequently, we conclude that the Arapahoe snowfly is a valid species and, therefore, a listable entity under section 3(16) of the Act.

Stoneflies are distinguished by the ability to fold their two pairs of wings back along the abdomen; however, none fly well (Williams and Feltmate 1992, pp. 33 and 35). Most stoneflies are inconspicuous insects that fly clumsily (Hynes 1976, p. 135). Species of Capnia are typically distinguished from other genera by physical characteristics of the epiproct (a projection at the end of the abdomen) (Nelson and Baumann 1989, p. 312). The Arapahoe snowfly adult is dark colored and has a body length of approximately 0.2 inches (in.) (5 millimeters (mm)) and a wing length of also approximately 0.2 in. (5 mm) (Nelson and Kondratieff 1988, p. 77). The immature (nymph) stage has not been described.

The Arapahoe snowfly has been documented only in two streams: Young Gulch and Elkhorn Creek in Colorado (Nelson and Kondratieff 1988, p. 77). Both streams are small tributaries of the Cache la Poudre River and are typical of streams in the Front Range of the Rocky Mountains of Colorado in that they are characterized by intermittent flow and a substrate of pebble, cobble, and bedrock (Nelson and Kondratieff 1988, p. 79). Upper reaches of both streams are typified by steep slopes with ponderosa pine ( Pinus ponderosa ) (Nelson and Kondratieff 1988, p. 79). Lower reaches near the confluences with the Cache la Poudre River, where the species has been collected, have gentler slopes, with cottonwood ( Populus angustifolia ), willow ( Salix spp.), Rocky Mountain maple ( Acer glabrum ), chokecherry ( Padus virginiana ), and alder ( Alnus incana ) trees along the stream margins (Colorado State University 2010, p. 1). Elevations at collection sites are 5,800 feet (ft) (1,768 meters (m)) at Young Gulch and 6,600 ft (2,010 m) at Elkhorn Creek (Nelson and Kondratieff 1988, p. 77). Both stream reaches with records of Arapahoe snowfly are within the Canyon Lakes Ranger District of the Roosevelt National Forest and managed by the U.S. Forest Service (USFS). There also are some private land holdings in upstream reaches of both drainages.

Stoneflies are primarily associated with clean, cool, running waters (Surdick and Gaufin 1978, p. 3; Brittain 1990, p. 1; Williams and Feltmate 1992, p. 35; Palma and Figueroa 2008, p. 81; Stewart and Stark 2008, p. 311). Water temperature is a major influence on stonefly growth and development (Brittain 1983, p. 445). Stonefly nymphs tend to have specific water temperature, substrate type, and stream size requirements that are reflected in their distribution along stream courses and the timing of their emergence in the spring (Stewart and Stark 2008, p. 311). Their restriction to cool, clean habitats with considerable water movement, all of which contribute to high dissolved oxygen concentrations, is thought to be connected to high dissolved oxygen requirements of the nymphs (Williams and Feltmate 1992, p. 39; Heinold 2010, p. 17). Winter stonefly nymphs undergo diapause (dormancy) in the hyporheic zone-an active interface between the surface stream and groundwater with exchanges of water, nutrients, and dissolved oxygen (Boulton et al. 1998, p. 59; Hancock 2002, p. 763). The hyporheic zone is vulnerable to changes in the quality and quantity of both surface water and groundwater (Hancock 2002, p. 763). Exchange between surface water and groundwater may be the most important regulator of biological activity in the hyporheic zone; without flow to renew nutrients and oxygen and flush wastes, the sediments become unsuitable habitat (Hancock 2002, p. 764). Human activities that can impact the hyporheic zone include water diversions, sedimentation from roads and trails, wastewater inputs, and livestock grazing (Hancock 2002, p. 765).

The species of aquatic macroinvertebrates present in a watershed are an important indicator of the long-term health of that watershed (Fleming 1999, pp. 93-94; DeWalt et al. 2005, p. 942). Stoneflies are considered the order of insects most sensitive to habitat alteration, pollution, and siltation, and are the best insect indicators of aquatic environmental quality (Baumann 1979, p. 241; Rosenberg and Resh 1993, p. 354; Fleming 1999, p. 94; Heinold 2010, p. 18). With increased stream disturbances, the number of stonefly taxa has been shown to decrease (Barbour et al. 1999, pp. 7.15-7.16). Fleming (1999, p. 94) developed a tolerance index for aquatic macroinvertebrates from 1 to 10, with 10 being most tolerant. Stoneflies were the least tolerant to stream perturbation, with a tolerance index ranging from 1.7 to 4.4 for the various families (Fleming 1999, p. 94). The family of small winter stoneflies, of which the Arapahoe snowfly is a member, was in the mid-range, with a tolerance index of 3.0 (Fleming 1999, p. 94).

We are not aware of any surface water quality data for Young Gulch, and there is minimal data for Elkhorn Creek. After work on this finding was initiated, the Service and the USFS undertook a cooperative effort to collect field data for both streams. However, Young Gulch was dry at the time of sampling (December 8, 2011). Consequently, data was only collected for Elkhorn Creek. Sampling was just above the confluence of the creek with the Cache la Poudre River. The winter season and the need for a short turn-around time on laboratory results in order to meet publication deadlines for the 12-month finding limited the amount of data collected. However, from what we know of winter stoneflies, the parameters shown in Table 1 appear adequate to support the species during early winter. These data are described in the following table (Sanchez 2011a, p. 2; 2011b, pp. 2, 14).

A study that included the Cache la Poudre River tested for the presence of 271 compounds, including volatile organic compounds, pesticides, wastewater compounds, and Escherichia coli (Collins and Sprague 2005, p. 1). Most (257) of these compounds were not detected in the river, and all concentrations detected were less than established water quality standards (Collins and Sprague 2005, p. 1). The river is considered generally pristine (Medley and Clements 1998, p. 632; George Weber Environmental, Inc. 2007, p. 7). Based upon what is known regarding habitat requirements of the Arapahoe snowfly, the mainstem of the Cache la Poudre River is not likely to be habitat for the species due to the fact that known and historical occurrences were both found in small, intermittent streams.

Few studies have been conducted on the Arapahoe snowfly due to its rarity and relatively recent discovery. Sampling for adult specimens is limited to late winter/early spring when adults are present above ground. Snowflies generally cannot be identified at the species level during most of their life history stages, including the nymph stage. The difficulties in distinguishing among species of snowfly nymphs and sampling under ice in winter have largely precluded the study of individual species (Stewart and Stark 2002, p. 122). Detailed life histories are well known for less than 5 percent of stonefly species (Stewart and Stark 2002, p. 23). Therefore, most of the information below comes from knowledge about stoneflies (order Plecoptera) in general, other members of the small winter stonefly family, and other species of the genus Capnia. We expect that the life history of the Arapahoe snowfly would be similar to these closely related species.

Stoneflies have a complex lifecycle that requires terrestrial habitat during the adult phase and aquatic habitat during the nymph phase (Lillehammer et a l. 1989, p. 183; Williams and Feltmate 1992, p. 33). Having both a terrestrial and aquatic phase creates dependence on two different environments (Brittain 1990, p. 1). The majority of the stonefly life cycle is spent as a developing nymph in the aquatic environment, while their brief terrestrial adult stage of 3 to 4 weeks is primarily focused on reproduction (Brittain 1990, p. 1; Williams and Feltmate 1992, p. 33). Winter stoneflies have a univoltine (1-year) life cycle (Hynes 1976, pp. 146-147).

As water levels fall through late winter, adult winter stoneflies emerge from the space that forms under stream ice and crawl onto the snow or nearby vegetation (Hynes 1976, pp. 135-36). Winter streamflow is essential for successful egg deposition (Jacobi and Cary 1996, p. 696). Water temperature also is important, with emergence occurring earlier in warmer years (Hynes 1976, p. 137). Arapahoe snowfly adults have been collected only in late March and early April (Mazzacano undated, p. 2). After emergence, winter stonefly males drum (beat their abdomen on the ground or on vegetation) to search for mates, with a frequency that is species and sex specific (Hynes 1976, p. 139). Unmated females reply, the males approach and drum again, and the process repeats until they meet and mate (Hynes 1976, p. 139). Mating occurs on the ground or on vegetation adjacent to the aquatic habitat (Brittain 1990, p. 1). Females release eggs over the surface of the flowing stream, and the eggs attach to the cobble and gravel in the stream substrate (Stewart and Stark 2008, p. 311).

Most stoneflies lay 100 to 2,000 eggs (Brittain 1990, p. 4). Winter stonefly eggs hatch within 3 to 4 weeks (Stewart and Stark 2008, p. 312). Hatching success is high within a water temperature range of 41 to 59 °F (5 to 15 °C) (Brittain 1990, p. 5). Most stoneflies show rapidly decreasing hatching success over 68 °F (20 °C) (Brittain 1990, p. 5). As water temperatures rise, nymphs burrow into the streambed and undergo summer diapause (Harper and Hynes 1970, pp. 925-926; Williams and Feltmate 1992, p. 39; Stewart and Stark 2002, p. 34; Mazzacano undated, p. 2). This behavior enables winter stoneflies to inhabit streams that may reach unsuitably high temperatures or dry up during the summer (Harper and Hynes 1970, pp. 925-926; Stewart and Stark 2002, p. 34). Diapause also may be a mechanism for synchronizing the timing of feeding with leaf drop in the fall (Stewart and Stark 2002, p. 35). As water temperatures drop in the fall, nymphs emerge from the hyporheic zone into the stream water and become more active. Most winter stonefly nymphs are shredders (feeding on organic detritus such as falling leaves that is deposited into streams), and active nymphs are usually found in leafy or woody stream debris (Short and Ward 1981, p. 341; Mazzacano undated, p. 2; Stewart and Stark 2008, p. 379).

Stoneflies have limited dispersal capability (Brittain 1990, pp. 2 and 10). This lack of mobility prevents them from crossing even small ecological barriers and has led to a high degree of local speciation (Hynes 1976, p. 135). A study in the United Kingdom that collected more than 22,500 adult stoneflies of 15 different species found that half of all stoneflies were taken within 59 ft (18 m) of the stream channel, and 90 percent traveled less than 197 ft (60 m) (Petersen et al. 2004, pp. 934, 938, and 942). Most studies also suggest a low tendency of in-stream drift for stonefly nymphs (Stewart and Szczytko 1983, p. 117).

Many snowflies are endemic species, with a narrow range limited to a small geographical or ecological area (Nebeker and Gaufin 1967, p. 416; Nelson and Baumann 1989, p. 292; Nelson 2008, pp. 178-179; Kondratieff and Baumann 2002, p. 399). Similarly, the Arapahoe snowfly appears to have a highly restricted distribution. It is historically known from only two small tributaries of the Cache la Poudre River in northern Colorado—Young Gulch and Elkhorn Creek (Nelson and Kondratieff 1988, p. 77; Heinold and Kondratieff 2010, p. 282). Habitat where the species has been collected extends from the confluences with the river to approximately 1,640 ft (500 m) upstream for both streams (Heinold 2011a, unpaginated). Searches further upstream have failed to locate the species (Heinold 2011a, unpaginated). Approximately 5 mi (8 km) separates these two streams. The species was first discovered in March 1986 in Young Gulch, but, despite repeated searches during most of the past 25 years, it has not been found again in that locale (Nelson and Kondratieff 1988, p. 77; Heinold 2011b and 2011c, unpaginated). In April 1987, the species was first located in Elkhorn Creek and has been found in subsequent searches in this stream (Nelson and Kondratieff 1988, p. 77). Repeated searches (at least 17 searches in the past 16 years) also have been conducted in 11 additional nearby waterways with similar ecological characteristics; however, the species has not been located in any of these streams (Heinold 2011b, unpaginated). Thus, the species is currently known from just one extant location and we consider it to be extirpated from Young Gulch.

Since the species was collected in Young Gulch only on one occasion, we do not know if there was actually a historical population there, what the size of that population was, or why it was extirpated. However, Young Gulch has several characteristics that may make it less desirable than Elkhorn Creek as Arapahoe snowfly habitat. Young Gulch is a shorter stream, which originates at a lower elevation (7,500 ft (2,290 m)) than Elkhorn Creek (10,000 ft (3,050 m)). Thus, any accumulated snowfall in the upper reaches of the drainage will melt sooner and more quickly, which in turn would result in the drying of the stream earlier in the year than Elkhorn Creek. There is no minimum flow water right on Young Gulch, as there is on Elkhorn Creek (Colorado Water Conservation Board (CWCB) and Colorado Division of Water Resources (CDWR) 2011, unpaginated). As noted above, when water samples were collected from Elkhorn Creek in Arapahoe snowfly habitat on December 8, 2011, Young Gulch was dry.

The other major difference between the two streams is the amount of recreational use. Young Gulch has a well-developed trailhead off of Highway 14 that, according to the USFS, experiences heavy, year-round usage, including hikers, bikers, backpackers, and horseback riders (USFS 2011c, pp. 1, 2). The 4.5-mi (7.2-km) trail follows Young Gulch and includes approximately 45 stream crossings (Casamassa 2011, p. 4). Aquatic macroinvertebrate species present at a given stream site are related to the number of stream crossings above that site, with the total number of larval species (including stoneflies) negatively related to the number of stream crossings (Gucinski et al. 2001, p. 26). The amount of usage and the number of stream crossings likely contribute to a high sediment load, which may have factored into the extirpation of the species at this location.

The species is known from 1 male specimen collected in 1986 in Young Gulch, 1 male in 1987, 10 males and 2 females in 2009, and 1 male in 2011, all in Elkhorn Creek (Heinold and Kondratieff 2010, p. 281; Heinold 2011d, unpaginated). We consider Elkhorn Creek to be the only currently occupied habitat. During a search of Elkhorn Creek on March 17, 2009, approximately 500 specimens of 4 species in the genus Capnia were collected, but only 5 of those specimens were Arapahoe snowfly (Heinold 2011a, unpaginated). We consider this low degree of detection to indicate rarity of the Arapahoe snowfly at the only known remaining location for the species.

Given the low numbers of individuals that have been collected over the years, we have no information available regarding population trends for the Arapahoe snowfly. However, we consider it extirpated from one of the two streams where it was historically known to occur. It appears to currently have an extremely narrow distribution near the confluence of one small stream, and it is rare within its only known occupied habitat.

Section 4 of the Act (16 U.S.C. 1533) and implementing regulations (50 CFR 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, a species may be determined to be endangered or threatened based on any of the following five factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

In making this finding, information pertaining to the Arapahoe snowfly in relation to the five factors provided in section 4(a)(1) of the Act is discussed below. In considering what factors might constitute threats to a species, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to that factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat and, during the status review, we attempt to determine how significant a threat it is. The threat is significant if it drives, or contributes to, the risk of extinction of the species such that the species warrants listing as endangered or threatened as those terms are defined in the Act. However, the identification of factors that could impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence sufficient to suggest that these factors are operative threats that act on the species to the point that the species may meet the definition of endangered or threatened under the Act.

Under this factor we evaluate climate change, recreation, development, forest management, and grazing.

Our analyses under the Endangered Species Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007, p. 78). Various types of changes in climate can have direct or indirect effects on species. These effects may be positive, neutral, or negative and they may change over time, depending on the species and other relevant considerations, such as the effects of interactions of climate with other variables ( e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). In our analyses, we use our expert judgment to weigh relevant information, including uncertainty, in our consideration of various aspects of climate change.

The western United States is being affected by climate change more than any other part of the United States outside of Alaska (Saunders et al. 2008, p. iv). The hydrological cycle of the western United States changed significantly over the second half of the 20th century (Barnett et al. 2008, p. 1080). Numerous studies show more winter precipitation falling as rain instead of snow, earlier snowmelt, and associated changes in river flow (Barnett et al. 2008, p. 1080). Between 1978 and 2004, the spring pulse (onset of streamflow from melting snow) in Colorado shifted earlier by 2 weeks (Ray et al. 2008, p. 2). Although there is no identified decrease in runoff to date, average annual runoff is projected to decrease significantly for the South Platte River basin (which includes Elkhorn Creek) over the next 50 to 60 years (U.S. Bureau of Reclamation (BOR) 2011, p. 94). A decline of 8 percent is projected by the 2020s, 14 percent by the 2050s, and 17 percent by the 2070s, due primarily to increased temperatures and little projected change in precipitation (BOR 2011, p. 94).

A precipitous decline in lower elevation snowpack below 8,200 ft (2,500 m) elevation is predicted to occur across the western United States by the middle of the 21st century, and modest declines of 10 to 20 percent are projected to occur in snowpack above 8,200 ft (2,500 m) elevation (Regonda et al. 2005, p. 376; Ray et al. 2008, p. 1). The headwaters of Elkhorn Creek approach 10,000 ft (3,050 m) elevation, indicating that Elkhorn Creek may begin to experience some effects from reduced snowpack within the next 50 years.

A local habitat that depends on snowmelt to maintain a sufficient quantity of in-stream flows is likely to be sensitive to projected reductions in average snowpack, as well as to changes in the timing and intensity of precipitation (Glick et al. 2011, p. 20). Species that breed in intermittent streams are likely to be highly susceptible to climate impacts from changes such as rising temperature regimes; winter precipitation arriving more frequently as rain than snow; and shifts in the timing of snowmelt, runoff, and peak stream flows (Glick et al. 2011, p. 41). Species that are poor dispersers also may be more susceptible as they will be less able to move from areas where the effects of climate change render those areas unsuitable and into areas that become newly suitable (Glick et al. 2011, p. 49). The Arapahoe snowfly is found in a localized habitat, breeds in an intermittent stream, and is considered a poor disperser. Consequently, it may be particularly vulnerable to the effects of climate change.

Temperature has critical effects on aquatic macroinvertebrates through its combined influences on dissolved oxygen and metabolic activity (Durance and Ormerod 2007, p. 943). The stonefly's restriction to cool, clean habitats with considerable water movement is thought to be connected to high dissolved oxygen requirements of the nymphs (Williams and Feltmate 1992, p. 39; Heinold 2010, p. 17). Stoneflies' adaptation to cold environments places them at a competitive disadvantage in warmer climates (Brittain 1990, p. 9; Haiderkker and Hering 2007, p. 473). A study in the United Kingdom found that spring macroinvertebrate abundance declined by an average rate of 21 percent across all species for every 1.8 °F (1 °C) rise in stream temperature in circumneutral (pH near neutral) streams (Durance and Ormerod 2007, p. 942). Sixteen species of stoneflies were among the 84 macroinvertebrate species noted in these streams (Durance and Ormerod 2007, p. 951). Air temperatures in the northern Front Range of Colorado increased 2.5 °F (1.4 °C) in the period 1977-2006 (Ray et al. 2008, p. 10). Stream temperatures also are expected to increase as the climate warms (Ray et al. 2008, p. 41).

In a study conducted over a 25-year period in the United Kingdom, scarcer taxa of macroinvertebrates disappeared in circumneutral (pH near 7) streams that showed progressive temperature increases (Durance and Ormerod 2007, p. 943). There is limited pH data specific to Elkhorn Creek. However, in 1973 the USFS recorded a pH of 7.5 in Elkhorn Creek headwaters and also near the confluence of Elkhorn Creek with the Cache la Poudre River (USFS 1973, p. 1). More recently, a pH of 6.46 was recorded in Elkhorn Creek near the confluence with the Cache la Poudre River (Sanchez 2011, p. 2). These pH values are circumneutral, and similar to pH values in the study. Thus, currently observed increasing trends in temperature for Elkhorn Creek might adversely impact the Arapahoe snowfly.

A laboratory study found that larval growth of one species of stonefly ( Leuctra nigra ) increased with increasing water temperature from 43 to 68 °F (5.9 to 19.8 °C); however, mortality also increased, resulting in only 7 to 10 percent of individuals completing their life cycle at the three higher temperatures, compared with 23 to 27 percent at the three lower temperatures (Elliot 1987, p. 181). The number of eggs laid also decreased at higher temperatures (Elliot 1987, p. 181). As previously noted, air temperatures in the northern Front Range of Colorado increased 2.5 °F (1.4 °C) in the period 1977-2006 and stream temperatures also are expected to increase (Ray et al. 2008, pp. 10 and 41). This suggests that water temperatures in Elkhorn Creek could increase to levels harmful to sensitive taxa such as the Arapahoe snowfly.

Disturbances such as insect outbreaks and wildfire are likely to intensify in a warmer future with drier soils and longer growing seasons (Field et al. 2007, p. 619; Karl et al. 2009, p. 82). Ongoing outbreaks of mountain pine beetle ( Dendroctonus ponderosae ) in Colorado are probably caused primarily by climate, specifically drought and high temperature (Romme et al. 2006, p. 4; Black et al. 2010, p. 1). Mountain pine beetles typically exist as small populations that feed on the innermost bark layer of trees that have been weakened by disease or injury (Black et al. 2010, p. 7). However, they can erupt to epidemic levels if stand structure and climatic conditions are appropriate and overcome the defenses of even healthy trees, leading to widespread mortality of host species (Field et al. 2007, p. 623; Black et al. 2010, p. 7).

Ponderosa pine is the dominant vegetation in the upper watershed of Elkhorn Creek (Nelson and Kondratieff 1988, p. 79). Mountain pine beetle infestations are building in ponderosa pine forests along the Front Range of Colorado, with an outbreak detected in northern Larimer County (Ciesla 2010, pp. 2, 10, and 34). This outbreak encompasses the range of the Arapahoe snowfly. Infestations in ponderosa pine along the Northern Front Range increased by more than 10-fold from 2009 to 2010, from 22,000 acres (ac) (8,903 hectares (ha)) to 229,000 ac (92,673 ha) (Ciesla 2011, pp. 6-7). Mountain pine beetle activity is expected to increase in the Front Range over the next several years (Ciesla 2011, p. 8). The mountain pine beetle outbreak in northern Colorado could affect water quantity and quality. As trees die and fall, forest cover becomes less dense, allowing greater exposure of snowpack to solar radiation, causing faster, earlier runoff and a resultant potential increase in soil erosion (Ciesla 2010, p. 17).

Epidemics that kill trees over large areas also provide dead, desiccated fuels for large wildfires (Field et al. 2007, p. 623). A warming climate encourages wildfires through a longer summer period that dries fuels, promoting easier ignition and faster spread (Field et al. 2007, p. 623). In the last 3 decades, the wildfire season in the western United States increased by 78 days (Saunders et al. 2008, p. 20). Fire suppression during the 20th century is believed to have created a high hazard of catastrophic fire in ponderosa pine forests of the northern Front Range in Colorado (Veblen et al. 2000, p. 1178). Catastrophic fire can impact aquatic macroinvertebrates. For example, following fires in Yellowstone National Park in 1988, there was a change in aquatic macroinvertebrates from shredder and collector species (such as snowflies) to scraper and filter-feeding species (Neary et al. 2009, p. 142). Similarly, following the 1996 Dome wildfire in New Mexico, aquatic macroinvertebrate shredders (including winter stoneflies) common in pre-fire years were reduced or eliminated, and had not recovered by 5 years post-fire (Vieira et al. 2004, pp. 1243 and 1251). Taxa with weak dispersal abilities and specialized feeding requirements (including winter stoneflies) became rare after the Dome wildfire (Vieira et al. 2004, p. 1256). A wildfire in the Elkhorn Creek watershed has a similar potential to eliminate rare macroinvertebrates such as the Arapahoe snowfly.

In conclusion, the effects of climate change will likely modify Arapahoe snowfly habitat in several ways including: (1) The predicted significant reduction in snowpack; (2) the present increase in temperature as well as continued threatened increases in future years; (3) the present and increasing outbreak of mountain pine beetle in ponderosa pine; and (4) the threatened increased likelihood of wildfire. Although available information indicates that climate change could potentially be modifying the species' habitat at the present time, we do not have any information that indicates this is currently threatening the species. However, the impacts from each of these stressors are reasonably expected to increase into the future, and the species' limited distribution and life history characteristics make it extremely vulnerable to the predicted impacts. Therefore, we consider modification of habitat as a result of climate change to be a threat to the species.

Recreation has been increasing in the northern Front Range as a result of increasing population growth in Colorado (USFS 2009b, p. 1). The nearest city is Fort Collins, Colorado, approximately 31 mi (50 km) from Elkhorn Creek. Fort Collins' population has grown rapidly in recent years. The 2006 population estimate was 129,467, an 8.7 percent increase from 2000 (City of Fort Collins 2008b, unpaginated). The 2010 population estimate was 143,986, an 11.2 percent increase from 2006 (City of Fort Collins 2011, unpaginated). Usage of trail systems throughout the Cache la Poudre River canyon will likely increase as the population continues to grow.

Specific information on the types of recreational usage for Elkhorn Creek is not available, but we expect that there would be similar usage patterns to nearby Young Gulch, where the USFS estimates that approximately 83 percent of recreational users were day-hikers, 10 percent bicyclists, 4 percent back-packers, and 1 percent horseback riders (Casamassa 2011, p. 5). Dogs are often allowed off-leash on USFS trails, including Elkhorn Creek trails (Casamassa 2011, p. 5). Common environmental impacts associated with trail usage include vegetation loss, soil compaction, erosion, muddiness, degraded water quality, and disruption of wildlife (International Mountain Biking Association (IMBA) 2007, p. 1; Marion and Wimpey 2007, unpaginated). The environmental degradation caused by hikers and mountain bikers is similar; both are substantially less than degradation caused by horses (Marion and Wimpey 2007, unpaginated). Eroded soils that enter streams increase sedimentation that can impact habitat directly or contribute to algae blooms that deplete dissolved oxygen (IMBA 2007, p. 8). Even localized disturbance can harm rare species (Marion and Wimpey 2007, unpaginated). Since Arapahoe snowfly nymphs require high dissolved oxygen levels (see Habitat section), algal blooms could indicate dissolved oxygen levels unsuitable for Arapahoe snowfly habitation.

A new trailhead was completed midway along Elkhorn Creek in 2010 that expanded the parking area and improved trail access (USFS 2009b, p. 4). Consequently, trail usage is likely to increase along the lower section of Elkhorn Creek in and near Arapahoe snowfly habitat. There are several areas along upper sections of Elkhorn Creek where trails are causing increased run-off and erosion (USFS 2009a, p. 48). Consequently, the USFS has identified 14 stream crossings for improvement (Casamassa 2011, p. 3). These trails originate 6 to 7 mi (10 to 11 km) upstream from where the Arapahoe snowfly has been found and progress further upstream, away from known Arapahoe snowfly habitat. We have no information at this time to indicate that sedimentation from these trails is impacting downstream Arapahoe snowfly habitat. Therefore, at present, we do not consider recreational use within the Elkhorn Creek watershed to be a threat to the species.

The number of species of stoneflies as well as the percentage of stoneflies compared with all insect species decreases with increasing stream perturbations (Barbour et al. 1999, pp. 7.15-7.16). Roads, water diversions, and wastewater inputs are the primary development activities occurring in the Elkhorn Creek watershed.

Road construction and use can result in large increases in suspended sediments, with potentially detrimental effects on water quality and aquatic macroinvertebrates (Anderson and Potts 1987, p. 681; Gucinski et al. 2001, p. vii; Grace 2002, p. 13; Angermeir et al. 2004, p. 19). A number of studies have demonstrated declines in invertebrate densities and biomass following sedimentation events by directly affecting aspects of their physiology or by altering their habitat (Anderson 1996, p. 8). Arapahoe snowfly nymphs inhabit the hyporheic zone in spaces between and beneath large substrate particles such as pebbles and cobbles. Sediment can clog these spaces, cementing the stream bottom, inhibiting the flow of dissolved oxygen, and making the habitat unsuitable for macroinvertebrate species such as stoneflies (Furniss et al. 1991, p. 302; Waters 1995, p. 65; Anderson 1996, pp. 6 and 8; Grace 2002, pp. 24-25). The aquatic macroinvertebrate species present at a given stream site are inversely related to the number of stream crossings above that site, with the total number of larval species (including stoneflies) decreasing with an increasing number of stream crossings (Gucinski et al. 2001, p. 26).

There are several areas along Elkhorn Creek where roads are causing increased run-off and erosion into the stream; consequently, the USFS rates the watershed as Class II or “at risk” (exhibiting moderate integrity relative to its potential condition and at risk of being able to support its beneficial uses) (USFS 2009a, p. 48). Unpaved roads create compacted, bare areas that increase runoff and erosion (USFS 2009a, p. 48). In addition, some road segments near Elkhorn Creek are steep and severely eroded (USFS 2009a, p. 48). Road density in the area averages 3.5 mi of roads per square mi (2.2 km per square km); a road density of 3.7 mi per square mi (2.3 km per square km) is considered high (USFS 2009a, p. A-1). Unpaved roads and jeep trails cross the Elkhorn Creek watershed approximately 20 times, according to topographic maps. One additional road crossing is by a paved road. Unpaved roads, constructed of native materials (such as gravel and sand), are more erosion prone than paved roads. All unpaved road crossings are upstream from Arapahoe snowfly habitat. The closest stream crossing by an unpaved road is approximately 5 to 6 mi (8 to 10 km) upstream of known occupied habitat for the species. Given the distance of the unpaved road crossings from the species' habitat, the sediment may be settling out before reaching occupied habitat. Additionally, during the winter, there is likely less traffic and the ground is frozen, both of which may result in less sediment erosion. We cannot identify any impacts to the species from the available water quality information.

Road salts are a common pollutant in regions with snowy winters and can enter air, soil, groundwater, and surface water from runoff, surface soils, or wind-borne spray (Center for Environmental Excellence 2009, p. 3; Silver et al. 2009, p. 942). Stoneflies are very sensitive to water salinity, with adverse effects apparent at low salinities (Hart et al. 1991, p. 136). However, the Colorado Department of Transportation concluded that magnesium chloride (the road salt used in Colorado Mountains) is highly unlikely to cause environmental damage at distances greater than 59 ft (18 m) from a roadway (Lewis 1999, p. vii; Center for Environmental Excellence 2009, p. 4). Highway 14 crosses Elkhorn Creek at its confluence with the Cache la Poudre River. Habitat for the Arapahoe snowfly extends from the confluence with the river to approximately 1,640 ft (500 m) upstream (Heinold 2011a, unpaginated). Therefore, based on the Colorado Department of Transportation's conclusion, approximately 3.6 percent of potential habitat may be impacted by the use of road salt. Sampling on December 8, 2011, within this 1,640-ft (500-m) reach in Elkhorn Creek detected very low salinity levels (Sanchez 2001b, p. 2). Based upon the small percentage of stream habitat that could potentially be impacted and the low salinity levels detected during the one sampling event, we do not consider the use of road salt to be a threat to the Arapahoe snowfly.

In conclusion, roads are contributing to an unacceptable sediment load resulting in the Elkhorn watershed being rated as Class II or “at risk.” However, these roads are a minimum of 5 mi (8 km) upstream of the species' occupied habitat, and we have limited downstream water quality information in the vicinity of Arapahoe snowfly habitat to confirm or refute impacts. We believe that use of road salts causes minimal impact to the species' habitat. Therefore, at present, we do not consider roads to be a threat to the species.

Elkhorn Creek and 2 of its tributaries contain 35 water diversion structures, 23 of which have active water rights (CWCB and CDWR 2011, unpaginated). Diversion rights totaling rates of approximately 50 cubic feet per second (cfps) (1.4 cubic meters per second (cmps)) plus an additional volume of approximately 205 acre-feet (252,800 cubic meters) are permitted (CWCB and CDWR 2011, unpaginated). A minimum flow of 2 cfps (0.06 cmps) for Elkhorn Creek is included among the active water rights (CWCB and CDWR 2011, unpaginated). This minimum flow indirectly provides some protection to habitat of the Arapahoe snowfly. However, Elkhorn Creek is described as an intermittent stream (Nelson and Kondratieff 1988, p. 79), and during periods of low precipitation it may be dry, despite in-stream flow water rights. The species' life history includes a diapause stage that allows it to inhabit streams which may become dry during the year due to high temperatures or low flows (Harper and Hynes 1970, pp. 925-926; Stewart and Stark 2002, p. 34).

In the upstream reach of the Cache la Poudre River that includes the confluence of Elkhorn Creek, water inputs and outputs tend to balance out (City of Fort Collins 2008a, p. 5). Further downstream, below the mouth of the Cache la Poudre Canyon, there are numerous water depletions (City of Fort Collins 2008a, pp. 5-6). However, the downstream river reach does not have an impact on the amount of water in Elkhorn Creek.

Several water diversions on Elkhorn Creek or its tributaries have modified or curtailed habitat for the Arapahoe snowfly. However, a minimum flow of 2 cfps for Elkhorn Creek is included among the active water rights, and information on other species of winter stoneflies indicates that diapause enables them to withstand naturally dry summer conditions. Therefore, at present, we do not consider water diversions to be a threat to the species.

The two largest known wastewater inputs within the Elkhorn Creek watershed are a Boy Scout camp (camp) located approximately 5 to 6 mi (8 to 10 km) upstream of known occupied habitat for the Arapahoe snowfly and a meditation and yoga retreat (retreat) located approximately 6 to 7 mi (10 to 11 km) upstream. Both facilities have septic tanks and constructed wetlands or evaporation ponds for treating wastewater prior to discharge into the groundwater basin within the Elkhorn Creek watershed (North Front Range Water Quality Planning Association 2011, unpaginated). Both the camp and the retreat are building treatment facilities that will further reduce the possibility of wastewater entering Elkhorn Creek (North Front Range Water Quality Planning Association 2011, unpaginated). With these precautions, we conclude that contamination of the Arapahoe snowfly habitat by wastewater from the camp or retreat is unlikely and therefore, not a threat to the species.

None of the streams in the project area are listed on the State Clean Water Act (CWA) section 303(d) list as impaired. However, groundwater monitoring wells installed both up-gradient and down-gradient from the retreat's wastewater treatment site show that all parameters, with the exception of chloride, had their lowest values (i.e., highest water quality) in groundwater up-gradient of the wastewater treatment site and their highest values (i.e., worst water quality) down-gradient of the wastewater treatment site (Zigler 2010, p. 5; Campbell 2011, unpaginated). Data submitted for June 2010, through July 2011, measured the following water quality parameters:

Contaminant inputs can move from groundwater into surface water through the hyporheic zone (Boulton et al. 1998, p. 73). Although down-gradient concentrations are elevated, none of the pollutants measured are priority pollutants under the CWA. We cannot make firm conclusions regarding the extent of contamination in the species' habitat caused by wastewater discharge into groundwater 5 to 7 mi (8 to 11 km) upstream without corresponding surface-water quality measurements taken during the summer in lower Elkhorn Creek near known Arapahoe snowfly occupied habitat, when human use upstream is much greater than occurred during the recent winter sampling period. None of the groundwater or surface-water quality information available indicates that nutrient enrichment (high levels of nitrogen or phosphorus), which could lead to algal blooms and decreased dissolved oxygen, is occurring. Wastewater inputs may have modified habitat through nutrient inputs into groundwater within the Elkhorn Creek watershed that could impact the hyporheic zone where Arapahoe snowfly nymphs undergo diapause. However, these inputs occur 5 to 7 mi (8 to 11 km) upstream, and we have only limited water-quality information in the vicinity of the species' known habitat. This data does not indicate nutrient enrichment, but sampling occurred on only one date during the winter, when wastewater inputs are minimal. At present, based upon the best available information, we do not consider wastewater a threat to the species.

In this section we discuss management by the USFS to address the mountain pine beetle; specifically, spraying trees with carbaryl to protect against mountain pine beetle attack and removal of hazardous trees.

Carbaryl is considered one of the most effective and environmentally safe insecticides used to prevent mountain pine beetle attack (Hastings et al. 2001, p. 803). Nevertheless, carbaryl poses ecological risks, particularly to honey bees and aquatic invertebrates (U.S. Environmental Protection Agency (EPA) 2004, p. 1). It is rated as “very highly toxic” to aquatic invertebrates, with one of the test organisms a species of stonefly ( Chloroperla grammatica ) (EPA 2004, p. 46). Despite no-spray buffer zones around aquatic habitats, pesticides such as carbaryl may be deposited by drift or mobilized by runoff from upland areas (Beyers et al. 1995, p. 27). A study described by Beyers et al. (1995, p. 32) found that virtually all stoneflies collected from a stream following carbaryl spraying were dead; however, mortality was likely ameliorated by colonization from unaffected organisms of the same species in the substrate or living upstream. In recent years, the USFS has been spraying carbaryl on thousands of individual trees in the Canyon Lakes Ranger District in an effort to control the ongoing mountain pine beetle outbreak (USFS 2009c, 2010b, 2011a, unpaginated). However, none of the sites sprayed to date are within the Elkhorn Creek watershed (Casamassa 2011, pp. 5-6). Pesticide drift into Arapahoe snowfly habitat is not likely due to the distance from sites that are sprayed. We have no information indicating that the Forest Service intends to spray carbaryl in the Elkhorn Creek watershed in the future, and they are committed to following label restrictions whenever using this pesticide. Therefore, at present, we do not consider spraying with carbaryl a threat to the species.

The USFS has been removing hazardous trees within the Canyon Lakes Ranger District that have been killed as a result of the mountain pine beetle outbreak (USFS 2009c, 2010b, 2011a, unpaginated). Hazardous trees in this area represent an imminent threat to public health and safety, and largely consist of lodgepole and ponderosa pine. The high percentage of dead trees also increases the amount of forest fuels available during a potential wildfire (USFS 2010a, p. 1). The USFS estimates that approximately 85 percent (48,000 ac (19,000 ha)) of the Arapaho and Roosevelt National Forests have been infested by mountain pine beetles (USFS 2010a, p. 1). Some restrictions regarding tree removal exist within critical habitat for the threatened Preble's meadow jumping mouse ( Zapus hudsonius preblei ). Designated critical habitat for the mouse includes the downstream reaches of both Elkhorn Creek and Young Gulch that contain potential habitat for the Arapahoe snowfly. Mechanical vegetation and slash treatments within critical habitat will occur only during the mouse's hibernation period (November 1-April 30) (USFS 2010a, p. 15). Hand (chainsaw) treatment of vegetation and slash can occur at any time (USFS 2010a, p. 15). No new stream crossings would be allowed in critical habitat (USFS 2010a, p. 16). Adult Arapahoe snowflies have been collected in late March and early April (Mazzacano undated, p. 2), and could potentially be active during removal of hazardous trees.

Ponderosa pines are more common in the upper reaches of Elkhorn Creek than in downstream reaches (Nelson and Kondratieff 1988, p. 79). This lessens the likelihood of tree removal occurring in lower stream reaches in the vicinity of Arapahoe snowfly habitat. Nevertheless, upstream removal of hazardous trees for reasons of public safety and fuel reduction could increase erosion and sediment loading due to soil disturbance near riparian areas (USFS 2010a, p. 40). However, leaving dead trees in place would increase the likelihood of large-scale or high-intensity wildfires due to increased fuel loads (USFS 2010a, p. 44). A wildfire in the vicinity of Arapahoe snowfly habitat could result in extirpation of the species through loss of streamside vegetation important for adult Arapahoe snowfly habitat and as a food source for nymphs and increased sedimentation. Therefore, at present, we do not consider removal of hazardous trees to be a threat to the species as this activity lessens the risk of wildfire. Furthermore, any removal of hazardous trees would likely occur upstream of Arapahoe snowfly habitat.

In conclusion, spraying of carbaryl is currently not implemented within the Elkhorn Creek watershed and, therefore, it is not currently a threat to the Arapahoe snowfly. Removal of hazardous trees may occur in upstream reaches of Elkhorn Creek and could potentially contribute to sediment loading in this stream. However, this activity could be more benefit than harm to the species as it reduces the risk of wildfire. Therefore, at present, we do not consider the forest management practice of hazardous tree removal to be a threat to the species.

The USFS manages one active cattle grazing allotment in the Elkhorn Creek watershed (Elkhorn-Lady Moon allotment) (Casamassa 2011, p. 5). The Elkhorn-Lady Moon allotment permits stocking of 75 cow-calf pairs from June 1 through September 30 (USFS 2006a, p. 4). Grazing has been discontinued on a second allotment (Seven Mile allotment) that also includes part of the Elkhorn Creek watershed (USFS 2006a, p. 9).

The effects of cattle grazing on streams have been well documented in the western United States (Clary and Webster 1989, p. 1; Chaney et al. 1993, p. 6; Fleischner 1994, p. 629; Belsky et al. 1999, p. 419; Agouridis et al. 2005, p. 592; Coles-Ritchie et al. 2007, p. 733). Cattle are attracted to, and tend to loaf in riparian areas (Roath and Krueger 1982, p. 100; Chaney et al. 1993, p. 6; Fleischner 1994, p. 629; Leonard et al. 1997, p. 11; Coles-Ritchie et al. 2007, p. 738). Grazing cattle can change watershed hydrology, alter stream channel morphology, erode soils, destroy riparian vegetation, impair water quality, and negatively affect aquatic species (Fleischner 1994, p. 635; Agouridis et al. 2005, p. 592). Water quality impacts can include increased nutrient levels, bacteria counts, protozoa, sediment loads, and water temperatures and decreased levels of dissolved oxygen (Belsky et al. 1999, p. 421). Cattle-impacted streams usually have unstable, trampled streambanks that become significant sources of sediments when they erode, resulting in sediment filling the spaces between cobble in the streambed (embedded streambed), which results in less accessibility to macroinvertebrates, like the Arapahoe snowfly, that use streambed habitat (Braccia and Voshell 2007, p. 198). Stream channel morphology impacts can include decreased channel and streambank stability during floods, and decreased bed gravel. Hydrology impacts can include decreased late-season flows and water table levels (Belsky et al. 1999, pp. 421-422). Impacts to riparian vegetation can include decreased abundance of submerged and emergent higher plants and increased algae (Belsky et al. 1999, p. 422). All of these changes can alter the diversity, abundance, and species composition of invertebrate populations, particularly those that require cleaner and colder waters and coarser substrates (Belsky et al. 1999, p. 424).

The percentage of stoneflies and other sensitive taxa in a stream has a negative relationship with cattle density (Braccia and Voshell 2007, p. 196; McIver and McInnis 2007, pp. 298 and 301). Higher stocking rates result in greater impacts to streams. Livestock excrement elevates stream water concentrations of inorganic phosphorus and nitrogen, which increases growth of filamentous algae and production by microbes that can reduce dissolved oxygen concentrations (Strand and Merrit 1999, p. 17). Reduced concentrations of dissolved oxygen can adversely affect stonefly nymphs, which have high dissolved oxygen requirements (Williams and Feltmate 1992, p. 39).

A Colorado study in the South Platte River watershed (which includes the Cache la Poudre River) found significantly higher counts of fecal bacteria in stream water at stocking rates of 0.38 cow per ac (0.94 cow per ha) or more (Gary et al. 1983, p. 128). As stated above, the grazing allotment on Elkhorn Creek has a much lower stocking rate that permits stocking 75 cow-calf pairs from June 11 through September 30 on 11,605 ac (4,700 ha), or 0.006 cow-calf pair per ac (0.02 cow-calf pair per ha) (USFS 2006b, p. 34; 2007, p. 12; 2011b, p. 1). If only primary range (1,975 ac (800 ha)) within the Elkhorn-Lady Moon allotment, where the majority of grazing occurs, is considered, the stocking rate is higher (0.04 cow-calf pair per ac (0.09 cow-calf pair per ha)), but still much less than the stocking rate of 0.38 cow per ac (0.94 cow per ha) from the study. Therefore, fecal bacteria counts in Elkhorn Creek may not be as elevated as at the study site. Low concentrations (less than established water quality standards) of E. coli bacteria have been detected in the Cache la Poudre River during the summer, perhaps due to increased recreation and cattle grazing in the watershed, combined with warmer stream water temperatures that can enhance bacterial survival (Collins and Sprague 2005, p. 1). However, the source of E. coli detected in the river is not known.

The Elkhorn-Lady Moon allotment management plan states: (1) Livestock will graze a pasture only once in any given year; (2) livestock will be removed when utilization reaches 45 percent on satisfactory upland range or 30 percent on unsatisfactory range; (3) livestock will be removed when stream reaches rated as functional-at-risk reach an average of 6 in. (150 mm) stubble height on tall sedges; and (4) livestock will be removed when streambank disturbance (trampling, exposed soils) reaches 20 to 25 percent of the key area stream reach (USFS 2007, p. 3; 2011b, pp. 1-3). The current grazing plan allows for a five-pasture rotational system (USFS 2007, p. 4). The allotment plan notes that lower reaches of Elkhorn Creek within the allotment have varying degrees of grazing impacts including heavily grazed sedges and hoof shearing along portions of the streambank, resulting in a marginal proper functioning rating (USFS 2007, p. 10). At its closest point, the Elkhorn-Lady Moon allotment is approximately 6 to 7 mi (10 to 11 km) upstream from where the Arapahoe snowfly has been found. Without surface-water quality measurements, taken during the summer grazing season and collected in lower Elkhorn Creek where there is known Arapahoe snowfly habitat, we cannot make firm conclusions regarding the extent of contamination in the species' habitat caused by grazing 6 to 7 mi (10 to 11 km) or further upstream.

In conclusion, grazing may have modified habitat through sediment loading and nutrient inputs into upstream reaches of the Elkhorn Creek watershed. However, stocking rates are light, these inputs occur at least 6 to 7 mi (10 to 11 km) upstream from where the Arapahoe snowfly has been found, and there is no water quality information from the summer grazing season in the vicinity of the species' known habitat to confirm or refute nutrient enrichment. Therefore, at present, we do not consider grazing to be a threat to the species.

In some instances, there may be conservation measures or management plans that are non-regulatory in nature which may provide benefits to a species.

The CNHP has proposed a Potential Conservation Area (PCA) for the species that would encompass approximately 5,000 ac (2,000 ha) and include downstream portions of both Elkhorn Creek and Young Gulch (Colorado State University 2005, p. 2). This PCA has a Biodiversity Significance Rank of B1 for outstanding biodiversity significance. This is the highest level of biological diversity that can be assigned to a site. A PCA can provide planning and management guidance, but infers no legal status, and this PCA has only been proposed.

The State of Colorado has had minimum in-stream flow water rights of 2 cfps (0.06 cmps) in Elkhorn Creek since 1978 (CWCB 2010, p. 10). This minimum flow indirectly provides some protection to habitat of the Arapahoe snowfly. However, Elkhorn Creek is described as an intermittent stream (Nelson and Kondratieff 1988, p. 79), and during periods of low precipitation it may be dry, despite in-stream flow water rights. Therefore, minimum flow requirements may be of limited benefit to the species.

Both stream reaches where the Arapahoe snowfly has been located are included in critical habitat for the Preble's meadow jumping mouse, designated on December 15, 2010 (75 FR 78430). Critical habitat extends 394 ft (120 m) from the edges of both streams, and is part of the Cache la Poudre River unit of critical habitat encompassing approximately 4,929 ac (1,995 ha) and 51 mi (82 km) of the river and its tributaries. Section 7(a)(2) of the Act requires Federal agencies to confer with us on any action funded, authorized, or carried out by a Federal agency that is likely to adversely affect the continued existence of the mouse or its designated critical habitat. Examples of specific activities that may adversely affect critical habitat and, therefore, require consultation include: Land clearing; road construction; bank stabilization; intensive grazing; water diversions; changes to inputs of water, sediment, and nutrients; or any activity that significantly and detrimentally alters water quantity.

This designation currently provides some indirect protection to the Arapahoe snowfly. The bodies of the streams are not included as critical habitat, although activities in the streams such as water diversions and changes to inputs of water, sediment, and nutrients such as might be caused by hazardous tree removal will require consultation if those activities may adversely affect critical habitat. Actions that do not affect the Preble's meadow jumping mouse or its habitat, or do not involve a Federal agency action, would not require consultation. Federal actions that occurred prior to 2003 did not require consultation because critical habitat for the mouse had not yet been designated. Designation of critical habitat for the Preble's meadow jumping mouse does not protect Arapahoe snowfly occupied habitat from the potential future effects of climate change, nor does it protect the body of Elkhorn Creek from some impacts to water quality that could likely occur without impacting designated critical habitat.

Potential present and threatened future habitat modification caused by climate change is a threat to the Arapahoe snowfly. Climate change is potentially modifying Arapahoe snowfly habitat in several ways including: (1) The threatened reduction in snowpack; (2) the present increase in temperature as well as continued threatened increases in future years; (3) the present outbreak of mountain pine beetle in ponderosa pine; and (4) the threatened increased likelihood of wildfire. Although available information indicates that climate change could potentially be modifying the species' habitat, we do not have any information that indicates this is currently threatening the species. However, the impacts from each of these stressors are expected to increase into the future. Therefore, we consider threatened habitat modification due to climate change to be a threat to the species.

Development in the Elkhorn Creek watershed includes the construction and use of numerous roads and trails, causing sedimentation that has resulted in a watershed rated as Class II or “at risk.” Water diversions from Elkhorn Creek and wastewater inputs into groundwater in the Elkhorn Creek watershed also may be impacting Arapahoe snowfly habitat. However, the extent of impact in the downstream reach where the species occurs has not been determined. Therefore, at present, we do not consider development a threat to the species.

Forest management by the USFS regarding the ongoing mountain pine beetle epidemic includes carbaryl spraying of lodgepole and ponderosa pines to prevent infestations and removal of dead trees that are a potential hazard. However, carbaryl spraying is not occurring in the Elkhorn Creek watershed, and we consider tree removal to pose less of a threat to the Arapahoe snowfly than the increased risk from wildfire if dead trees are not removed. Therefore, at present, we do not consider forest management practices to be a threat to the species.

Some grazing occurs in upstream reaches of the Elkhorn Creek watershed. However, stocking rates are light, these inputs occur at least 6 to 7 mi (10 to 11 km) upstream from where the Arapahoe snowfly has been found, and we have no water quality information in the vicinity of the species' known habitat to confirm or refute nutrient enrichment. Therefore, at present, we do not consider grazing to be a threat to the species.

There are management plans or other conservation measures that directly or indirectly protect the species, to some degree. However, these cannot protect against habitat modification due to climate change.

We are not aware of any threats due to overutilization of the Arapahoe snowfly for any commercial, recreational, scientific, or educational purposes at this time. We are aware that specimens have been collected for scientific purposes to describe the species and determine its distribution and abundance (Heinold and Kondratieff 2010, p. 281; Heinold 2011d, unpaginated). However, we have no information that suggests these collections were or are occurring at a level that impacts the overall status of the species. Therefore, at present, we do not consider overutilization to be a threat to the species.

We are not aware of any diseases that affect the Arapahoe snowfly. Therefore, at present, we do not consider disease to be a threat to the species. We presume that Arapahoe snowfly nymphs and adults may occasionally be subject to predation by certain fish species, such as brook trout ( Salvelinus fontinalis ) or by certain bird species, such as the American dipper ( Cinclus mexicanus ). Both of these species are known to be present in Elkhorn Creek and to consume invertebrates (USFS 2006b, p. 69; eBird 2011, unpaginated). However, nymphs may be protected from most predation due to burrowing into the streambed to undergo diapause, leaving terrestrial adults as the most likely potential prey. However, we have no information that any predation is a threat to the species. Therefore, at present, we do not consider predation to be a threat to the species.

The Act requires us to examine the adequacy of existing regulatory mechanisms with respect to ongoing and foreseeable threats that place the Arapahoe snowfly at risk of becoming either endangered or threatened. The species currently receives no direct protection under Federal, State, or local law.

The Arapahoe snowfly is designated as “critically imperiled” at both the State and global level by Colorado's Natural Heritage Program (CNHP) and NatureServe, respectively (NatureServe 2009, p. 1). However, this designation does not provide any legal protection for the species or its habitat. See Factor A for a discussion of the CNHP. The Arapahoe snowfly is designated as a “species of greatest conservation need” by the Colorado Division of Wildlife (CDOW), based upon its global and State ranking by NatureServe and the CNHP (CDOW 2006, pp. 17 and 20). However, this designation also confers no protection to the species from the threats identified in Factors A and E.

The Arapahoe snowfly occurs on USFS lands and is indirectly protected by Federal laws and regulations mandating how USFS lands are managed. The Land and Resource Management Plan (LRMP) for the Arapaho and Roosevelt National Forests and Pawnee National Grassland was prepared in accordance with the National Forest Management Act of 1976 (NFMA), the regulatory mechanism directing the administration and management of national forests. One of the goals of the LRMP is to restore, protect, and enhance habitats for endangered, threatened, and proposed species listed in accordance with the Act, as well as sensitive species appearing on the regional sensitive species list to contribute to their stabilization and full recovery (USFS 1997, p. 17). Habitat on USFS lands is managed to help assure that species whose viability is a concern survive throughout their range, that populations increase or stabilize, or that threats are eliminated (USFS 1997, p. 7). However, the species is not currently listed under the Act, and it is not on the USFS sensitive species list. Consequently, it currently receives no direct protection under the USFS LRMP. The management authorities that USFS has available are not adequate to protect the species from the primary threats of climate change and small population size (see Factor E).

All Federal agencies are required to adhere to the National Environmental Policy Act (NEPA) of 1970 (42 U.S.C. 4321 et seq. ) for projects they fund, authorize, or carry out. The Council on Environmental Quality's regulations for implementing NEPA (40 CFR 1500-1518) state that when preparing environmental impact statements, agencies must include a discussion on the environmental impacts of the various project alternatives, any adverse environmental effects that cannot be avoided, and any irreversible or irretrievable commitments of resource involved. Additionally, activities on non-Federal lands are subject to NEPA if there is a Federal action. The NEPA is a disclosure law, and does not require subsequent minimization or mitigation measures by the Federal agency involved. Although Federal agencies may include conservation measures for sensitive species as a result of the NEPA process, any such measures are typically voluntary in nature and not required by the statute.

On December 15, 2009, the EPA published in the Federal Register (74 FR 66496) a rule titled, “Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act.” In this rule, the EPA Administrator found that the current and projected concentrations of the six long-lived and directly emitted greenhouse gases—carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride—in the atmosphere threaten the public health and welfare of current and future generations; and that the combined emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution that threatens public health and welfare (74 FR 66496). In effect, the EPA has concluded that the greenhouse gases linked to climate change are pollutants, whose emissions can now be subject to the Clean Air Act (42 U.S.C. 7401 et seq.; see 74 FR 66496). However, specific regulations to limit greenhouse gas emissions were only proposed in 2010 and, therefore, cannot be considered an existing regulatory mechanism. At present, we have no basis to conclude that implementation of the Clean Air Act in the foreseeable future (40 years, based on global climate projections) will substantially reduce the current rate of global climate change through regulation of greenhouse gas emissions. Thus, we conclude that the Clean Air Act is not designed to address the primary threats to the Arapahoe snowfly, namely the anticipated loss of thermally and hydrologically suitable habitat as a result of increasing water temperatures and reduced snowpack changes that result from climate change in the Elkhorn Creek watershed, Colorado.

Combined with the threats discussed under Factor A, the species' small population size makes the species more vulnerable to extinction due to demographic stochasticity, environmental stochasticity, and random catastrophe (discussed under Factor E). We are not aware of any regulatory mechanisms that address threats caused by small population size for this species.

There are no regulatory mechanisms that directly protect the Arapahoe snowfly at the Federal, State, or local level. The species is indirectly protected by Federal laws and regulations mandating how USFS lands are managed. These regulatory mechanisms cannot protect against climate change or a small population size (discussed under Factor E). We consider habitat loss and modification resulting from the environmental changes due to climate change to constitute a primary threat to the species. The United States is only now beginning to address global climate change through the regulatory process (e.g., Clean Air Act). We have no information on what regulations may eventually be adopted and when implemented. We are not aware of any regulatory mechanisms that address the changes in Arapahoe snowfly habitat that are occurring or likely to occur in the future. Additionally, we are not aware of any regulations that address threats caused by small population size.

Under this factor we consider the small population size of the Arapahoe snowfly. As discussed in the section on Historic Distribution, the species has been extirpated from Young Gulch, one of the two streams where it was known to occur. Based upon the best available information, it appears to currently have an extremely narrow distribution near the confluence of Elkhorn Creek with the Cache la Poudre River, and appears rare within its only known occupied habitat.

A species may be considered rare because of a limited geographical range, specialized habitat, or small population size (Primack 1998, p. 176). The Arapahoe snowfly appears to have a very limited occupied range (approximately 1,640 ft (500 m) along 1 stream) and a very small population size (13 males and 2 females have been collected in the past 25 years). It has several characteristics typical of species vulnerable to extinction including: (1) A very narrow geographical range; (2) only one known population; (3) a small population size; (4) an ineffective disperser; (5) a seasonal migrant depending on two or more distinct habitat types to complete its life cycle; and (6) characteristically found in stable, pristine environments (Primack 1998, pp. 178-187).

Extinction may be caused by demographic stochasticity due to chance realizations of individual probabilities of death and reproduction, particularly in small populations (Shaffer 1981, p. 131; Lande 1993, pp. 911-912). Environmental stochasticity can result in extinction through a series of small or moderate perturbations that affect birth and death rates within a population (Shaffer 1981, p. 131; Lande 1993, p. 912). Lastly, extinction can be caused by random catastrophes (Shaffer 1981, p. 131; Lande 1993, p. 912). The Arapahoe snowfly is vulnerable to extinction due to: (1) Demographic stochasticity due to its small population size; (2) environmental stochasticity due to continued small perturbations caused by ongoing modification and curtailment of its habitat and range; and (3) the chance of random catastrophe such as wildfire.

Small populations also can be vulnerable due to a lack of genetic diversity (Shaffer 1981, p. 132). We have no information regarding genetic diversity of the Arapahoe snowfly. A minimum viable population (MVP) will vary depending on the species. An MVP of 1,000 may be adequate for species of normal genetic variability, and an MVP of 10,000 should permit long-term persistence and continued genetic diversity (Thomas 1990, p. 325). These estimates should be increased by at least 1 order of magnitude (to 10,000 and 100,000) for insects because they usually have greater population variability (Thomas 1990, p. 326). Based upon available information, the Arapahoe snowfly likely does not meet these minimum population criteria for maintaining genetic diversity.

We consider the Arapahoe snowfly to be rare due to its extremely limited range, a single known extant population, and its small population size. It also is an ineffective disperser, a seasonal migrant depending on two or more distinct habitat types to complete its life cycle, and it requires a pristine environment to carry out life history functions. The restricted range of the species does not necessarily constitute a threat in itself. However, combined with the threats discussed under Factor A, the species' small population size makes the species more vulnerable to extinction due to demographic stochasticity, environmental stochasticity, and random catastrophe. The presence of specific threats including climate change increases the vulnerability of this small population. Therefore, at present, we consider its small population size to be a threat to the species.

As required by the Act, we considered the five factors in assessing whether the Arapahoe snowfly is threatened or endangered throughout all of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the species. We reviewed the petition, information available in our files, other available published and unpublished information, and we consulted with recognized species experts and other Federal and State agencies.

This status review identified threats to the Arapahoe snowfly attributable to Factors A, D, and E. Potential present and threatened habitat modification caused by climate change is impacting the Elkhorn Creek watershed. We also find that the species is at risk due to its small population size. Existing regulatory mechanisms are not designed to protect the species from threats identified under Factors A and E. The following table summarizes the conclusions from our five factor analysis:

On the basis of the best scientific and commercial information available, we find that the petitioned action is warranted. We will make a determination on the status of the species as threatened or endangered when we do a proposed listing determination. However, as explained in more detail below, an immediate proposal of a regulation implementing this action is precluded by higher priority listing actions, and expeditious progress is being made to add or remove qualified species from the Lists of Endangered and Threatened Wildlife and Plants.

We reviewed the available information to determine if the existing and foreseeable threats render the species at risk of extinction now such that issuing an emergency regulation temporarily listing the Arapahoe snowfly under section 4(b)(7) of the Act is warranted. We determined that issuing an emergency regulation temporarily listing the species is not warranted for this species at this time, because the species is not under immediate threat of extinction. Impacts from climate change, a small population size, and lack of adequate regulatory mechanisms are cumulative, and will develop in intensity and scope over time. However, if at any time we determine that issuing an emergency regulation temporarily listing the Arapahoe snowfly is warranted, we will initiate this action at that time.

The Service adopted guidelines on September 21, 1983 (48 FR 43098), to establish a rational system for utilizing available resources for the highest priority species when adding species to the Lists of Endangered or Threatened Wildlife and Plants or reclassifying species listed as threatened to endangered status. These guidelines, titled “Endangered and Threatened Species Listing and Recovery Priority Guidelines,” address the magnitude and immediacy of threats and the level of taxonomic distinctiveness by assigning priority in descending order to monotypic genera (genus with one species), full species, and subspecies (or equivalently distinct population segments of vertebrates). Listing Priority Numbers (LPNs) range from 1 to 12, with an LPN of 1 representing the highest priority. We assign the Arapahoe snowfly an LPN of 5 based on our finding that this is a species facing threats that are of high magnitude, but those threats are not imminent. These threats include the present or threatened destruction, modification, or curtailment of its habitat, the inadequacy of existing regulatory mechanisms, and its small population size. Our rationale for assigning the Arapahoe snowfly an LPN of 5 is outlined below.

Under the Service's LPN Guidance, the magnitude of threat is the first criterion we look at when establishing a listing priority. The guidance indicates that species with the highest magnitude of threat are those species facing the greatest threats to their continued existence. These species receive the highest priority. Threats to the Arapahoe snowfly are of high magnitude because climate change, inadequate regulatory mechanisms, and a small population size occur throughout the range of the species. The species has not been located in Young Gulch since 1986 and, despite repeated searches, has not been located in other nearby tributaries, leaving one small known population along a reach of Elkhorn Creek of approximately 1,640 ft (500 m).

Under our LPN Guidance, the second criterion we consider in assigning a listing priority is the immediacy of threats. This criterion is intended to ensure that the species facing actual, identifiable threats are given priority over those species for which threats are only potential or species that are intrinsically vulnerable, but are not known to be presently facing such threats. We consider the threats to the Arapahoe snowfly overall to be non-imminent because: (1) Although increases in temperature in excess of those known to adversely impact stoneflies have been documented in the northern Front Range of Colorado, we have no information to indicate that the species has actually been adversely affected by these temperatures; and (2) a single small population with a very limited range results in increased vulnerability to extirpation caused by threats from climate change and sedimentation; however, the species has been located in Elkhorn Creek on three occasions since 1987. While regulatory mechanisms are currently inadequate to protect the species from the previously described threats, these impacts do not appear to be affecting the existing population in Elkhorn Creek, though they may be precluding reestablishment in the Young Gulch watershed.

These actual, identifiable threats are covered in detail under the discussion of Factors A, D, and E of this finding. We previously acknowledged that few studies have been conducted on the Arapahoe snowfly due to its rarity, the difficulties in distinguishing among species of snowfly nymphs, and difficulties of sampling under ice in winter. Consequently, most of the best available information regarding specific impacts caused by the various threats comes from our knowledge about stoneflies (order Plecoptera) in general, other members of winter stonefly (family Capniidae), and other species of snowfly (genus Capnia ). Due to the extreme rarity of the Arapahoe snowfly, species-specific research is not likely to be conducted, and we do not consider it appropriate to defer this finding until research is conducted. The available data shows adverse impacts from these threats for closely related species.

The third criterion in our LPN guidance is intended to devote resources to those species representing highly distinctive or isolated gene pools as reflected by taxonomy. The Arapahoe snowfly is a valid taxon at the species level and, therefore, receives a higher priority than a subspecies, but a lower priority than a species in a monotypic genus. The Arapahoe snowfly faces high-magnitude, nonimminent threats, and is a valid taxon at the species level. Thus, in accordance with our LPN guidance, we have assigned the Arapahoe snowfly an LPN of 5.

We will continue to monitor the threats to the Arapahoe snowfly and the species' status on an annual basis, and should the magnitude or the imminence of the threats change, we will revisit our assessment of the LPN.

Work on a proposed listing determination for the Arapahoe snowfly is precluded by work on higher priority listing actions with absolute statutory, court-ordered, or court-approved deadlines and final listing determinations for those species that were proposed for listing with funds from Fiscal Year 2012. This work includes all the actions listed in the tables below under expeditious progress.

Preclusion is a function of the listing priority of a species in relation to the resources that are available and the cost and relative priority of competing demands for those resources. Thus, in any given fiscal year (FY), multiple factors dictate whether it will be possible to undertake work on a listing proposal regulation or whether promulgation of such a proposal is precluded by higher priority listing actions. We make our determinations of preclusion on a nationwide basis to ensure that the species most in need of listing will be addressed first and also because we allocate our listing budget on a nationwide basis.

Congress identified the availability of resources as the only basis for deferring the initiation of a rulemaking that is warranted. The Conference Report accompanying Public Law 97-304 (Endangered Species Act Amendments of 1982), which established the current statutory deadlines and the warranted-but-precluded finding, states that the amendments were “not intended to allow the Secretary to delay commencing the rulemaking process for any reason other than that the existence of pending or imminent proposals to list species subject to a greater degree of threat would make allocation of resources to such a petition [that is, for a lower-ranking species] unwise.” Although that statement appeared to refer specifically to the “to the maximum extent practicable” limitation on the 90-day deadline for making a “substantial information” finding, that finding is made at the point when the Service is deciding whether or not to commence a status review that will determine the degree of threats facing the species, and therefore the analysis underlying the statement is more relevant to the use of the warranted-but-precluded finding, which is made when the Service has already determined the degree of threats facing the species and is deciding whether or not to commence a rulemaking.

The resources available for listing actions are determined through the annual Congressional appropriations process. The appropriation for the Listing Program is available to support work involving the following listing actions: Proposed and final listing rules; 90-day and 12-month findings on petitions to add species to the Lists of Endangered and Threatened Wildlife and Plants (Lists) or to change the status of a species from threatened to endangered; annual “resubmitted” petition findings on prior warranted-but-precluded petition findings as required under section 4(b)(3)(C)(i) of the Act; critical habitat petition findings; proposed and final rules designating critical habitat; and litigation-related, administrative, and program-management functions (including preparing and allocating budgets, responding to Congressional and public inquiries, and conducting public outreach regarding listing and critical habitat). The work involved in preparing various listing documents can be extensive and may include, but is not limited to: Gathering and assessing the best scientific and commercial data available and conducting analyses used as the basis for our decisions; writing and publishing documents; and obtaining, reviewing, and evaluating public comments and peer review comments on proposed rules and incorporating relevant information into final rules. The number of listing actions that we can undertake in a given year also is influenced by the complexity of those listing actions; that is, more complex actions generally are more costly. The median cost for preparing and publishing a 90-day finding is $39,276; for a 12-month finding, $100,690; for a proposed rule with critical habitat, $345,000; and for a final listing rule with critical habitat, $305,000.

We cannot spend more than is appropriated for the Listing Program without violating the Anti-Deficiency Act (see 31 U.S.C. 1341(a)(1)(A)). In addition, in FY 1998 and for each fiscal year since then, Congress has placed a statutory cap on funds that may be expended for the Listing Program, equal to the amount expressly appropriated for that purpose in that fiscal year. This cap was designed to prevent funds appropriated for other functions under the Act (for example, recovery funds for removing species from the Lists), or for other Service programs, from being used for Listing Program actions (see House Report 105-163, 105th Congress, 1st Session, July 1, 1997).

Since FY 2002, the Service's budget has included a critical habitat subcap to ensure that some funds are available for other work in the Listing Program (“The critical habitat designation subcap will ensure that some funding is available to address other listing activities” (House Report No. 107-103, 107th Congress, 1st Session, June 19, 2001)). In FY 2002 and each year until FY 2006, the Service has had to use virtually the entire critical habitat subcap to address court-mandated designations of critical habitat, and consequently none of the critical habitat subcap funds have been available for other listing activities. In some FYs since 2006, we have been able to use some of the critical habitat subcap funds to fund proposed listing determinations for high-priority candidate species. In other FYs, while we were unable to use any of the critical habitat subcap funds to fund proposed listing determinations, we did use some of this money to fund the critical habitat portion of some proposed listing determinations so that the proposed listing determination and proposed critical habitat designation could be combined into one rule, thereby being more efficient in our work. At this time, for FY 2012, we are using some of the critical habitat subcap funds to fund proposed listing determinations.

Through the listing cap, the critical habitat subcap, and the amount of funds needed to address court-mandated critical habitat designations, Congress and the courts have in effect determined the amount of money available for other listing activities nationwide. Therefore, the funds in the listing cap, other than those needed to address court-mandated critical habitat for already listed species, set the limits on our determinations of preclusion and expeditious progress.

For FY 2012, on December 23, 2011, Congress passed a Consolidated Appropriations Act (Pub. L. 112-74) which provides funding through the end of the fiscal year. The Service has $20,902,000 for the listing program. Of that, no more than $7,472,000 is available for determinations of critical habitat for already listed species. In addition, while no more than $1,500,000 can be used for listing, delisting, and reclassification actions for foreign species, $500,000 is being allocated for work on foreign species. The Service thus has $12,930,000 available to fund work on listing actions other than critical habitat designation and work on foreign species. The following are categories of work for which listing funds are being used: (1) Compliance with court orders and court-approved settlement agreements requiring that petition findings or listing determinations be completed by a specific date; (2) section 4 (of the Act) listing actions with absolute statutory deadlines; and (3) essential litigation-related, administrative, and listing program-management functions. In FY 2010, the Service received many new petitions and a single petition to list 404 species, increasing our workload significantly. Additionally, as a result of a settlement agreement, we are implementing a work plan that establishes a framework and schedule for resolving by September 30, 2016, the status of all of the species that the Service had determined to be qualified as of the 2010 Candidate Notice of Review. The Service submitted such a work plan to the U.S. District Court for the District of Columbia in In re Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D. DC May 10, 2011), and obtained the court's approval. In FY 2012, our entire listing budget has been allocated for work in the above categories, primarily including work under this settlement agreement. The budget allocations for each specific listing action are identified in the Service's FY 2012 Allocation Tables (part of our record). Thus, funding a proposed listing determination for the Arapahoe snowfly is precluded by our lack of available resources.

Based on our September 21, 1983, guidelines for assigning an LPN for each candidate species (48 FR 43098), we assign each candidate an LPN of 1 to 12, depending on the magnitude of threats (high or moderate to low), immediacy of threats (imminent or nonimminent), and taxonomic status of the species (in order of priority: Monotypic genus (a species that is the sole member of a genus); species; or part of a species (subspecies, or distinct population segment)). The lower the listing priority number, the higher the listing priority (that is, a species with an LPN of 1 would have the highest listing priority). A species with a higher LPN would generally be precluded from listing by species with lower LPNs, unless work on a proposed rule for the species with the higher LPN can be combined with work on a proposed rule for other high-priority species. This is not the case for Arapahoe snowfly. Thus, in addition to being precluded by the lack of available resources, the Arapahoe snowfly with an LPN of 5 is also precluded by work on proposed listing determinations for those candidate species with a higher listing priority.

Finally, proposed rules for reclassification of threatened species to endangered species are lower priority, because as listed species, they are already afforded the protections of the Act and implementing regulations. However, for efficiency reasons, we may choose to work on a proposed rule to reclassify a species to endangered if we can combine this with work that is subject to a court-determined deadline.

With our workload much larger than the amount of funds we have to accomplish it, it is important that we be as efficient as possible in our listing process. Therefore, as we implement our listing work plan and work on proposed rules for the highest priority species in the next several years, we are preparing multi-species proposals when appropriate, and these may include species with lower priority if they overlap geographically or have the same threats as a species with an LPN of 2. In addition, we take into consideration the availability of staff resources when we determine which high-priority species will receive funding to minimize the amount of time and resources required to complete each listing action.

As explained above, a determination that listing is warranted but precluded must also demonstrate that expeditious progress is being made to add and remove qualified species to and from the Lists of Endangered and Threatened Wildlife and Plants. As with our “precluded” finding, the evaluation of whether progress in adding qualified species to the Lists has been expeditious is a function of the resources available for listing and the competing demands for those funds. (Although we do not discuss it in detail here, we are also making expeditious progress in removing species from the list under the Recovery program in light of the resource available for delisting, which is funded by a separate line item in the budget of the Endangered Species Program. To date, during FY 2012, we completed delisting rules for one species.) Given the limited resources available for listing, we find that we are making expeditious progress in FY 2012 in the Listing Program. This progress included preparing and publishing the following determinations:

Our expeditious progress also includes work on listing actions that we funded in previous fiscal years and in FY 2012 but have not yet been completed to date. These actions are listed below. Actions in the top section of the table are being conducted under a deadline set by a court through a court order or settlement agreement. The Service had already begun to implement our work plan submitted as part of the MDL settlement case (see above) last FY and we continue to work on these actions. Many of these initial actions in our work plan include work on proposed rules for candidate species with an LPN of 2 or 3. As discussed above, selection of the order in which these species are worked on is partially based on available staff resources, and when appropriate, include species with a lower priority if they overlap geographically or have the same threats as the species with the high priority. Including these species together in the same proposed rule results in considerable savings in time and funding, when compared to preparing separate proposed rules for each of them in the future. Actions in the lower section of the table are being conducted to meet statutory timelines, that is, timelines required under the Act.

We have endeavored to make our listing actions as efficient and timely as possible, given the requirements of the relevant law and regulations, and constraints relating to workload and personnel. We are continually considering ways to streamline processes or achieve economies of scale, such as by batching related actions together. Given our limited budget for implementing section 4 of the Act, these actions described above collectively constitute expeditious progress.

The Arapahoe snowfly will be added to the list of candidate species upon publication of this 12-month finding. We will continue to monitor the status of this species as new information becomes available. This review will determine if a change in status is warranted, including the need to make prompt use of emergency listing procedures.

We intend that any proposed listing action for the Arapahoe snowfly will be as accurate as possible. Therefore, we will continue to accept additional information and comments from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding.

A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Colorado Field Office (see ADDRESSES section).

The primary authors of this notice are the staff members of the Colorado Field Office and the Mountain-Prairie Regional Office.

The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the eastern diamondback rattlesnake from governmental agencies, Native American tribes, the scientific community, industry, and any other interested parties. We seek information on:

(1) The species' biology, range, and population trends, including:

(a) Habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy throughout its entire range both historical and current;

(c) Historical and current range including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq. ), which are:

(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.

(3) Information related to whether any portion of the species' range should be considered for listing as a distinct population segment.

(4) Information on specific activities that could be affected or issues caused by listing the species.

If, after the status review, we determine that listing the eastern diamondback rattlesnake is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act) under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, we also request data and information on:

(1) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range currently occupied by the species;

(2) Where these features are currently found;

(3) Whether any of these features may require special management considerations or protection;

(4) Specific areas outside the geographical area occupied by the species that are “essential for the conservation of the species;” and

(5) What, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of section 4 of the Act.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Information and supporting documentation that we received and used in preparing this finding is available for you to review at http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Panama City Ecological Services Field Office, FL (see FOR FURTHER INFORMATION CONTACT ).

Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register .

Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12-month finding.

On August 29, 2011, we received a petition dated August 22, 2011, from Collette L. Adkins Giese, Herpetofauna Staff Attorney, Center for Biological Diversity; D. Noah Greenwald, Endangered Species Program Director, Center for Biological Diversity; D. Bruce Means, Ph.D., President and Executive Director, Coastal Plains Institute; Bill Matturro, Protect All Living Species; and Jim Ries, One More Generation (petitioners), requesting that the eastern diamondback rattlesnake be listed as a threatened species and that critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioners required at 50 CFR 424.14(a). In a September 26, 2011, letter to the petitioners, we acknowledged receipt of the petition. On December 11, 2011, we received, via email, a letter dated December 9, 2011, from the petitioners submitting information to amend the petition with new information regarding climate change. In a December 12, 2011, email to the petitioners, we acknowledged receipt of the new information. This finding addresses the petition.

There are no previous Federal actions concerning the eastern diamondback rattlesnake under the Act.

The eastern diamondback rattlesnake ( Crotalus adamanteus ) was described in 1799 by Beauvois (Transactions of the American Philosophical Society, Vol. 4 (1799), pp. 362-381). The Florida Museum of Natural History Web site 2011 ( http://www.flmnh.ufl.edu/herpetology/fl-guide/crotalusadamanteus.htm ) lists Crotalus durissus as a synonym by Boulenger (1896). This synonym was not found in other taxonomic treatments of the species or in the information available to the Service at the time of this finding. No other taxonomic history other than C. adamanteus was found during the course of this finding. The eastern diamondback is recognized as a valid species in the Checklist of Vertebrates of the United States, the U.S. Territories, and Canada (ITIS) (retrieved November 9, 2011, from the Integrated Taxonomic Information System on-line database). Therefore, we accept the taxonomic description of the eastern diamondback as Crotalus adamanteus.

The eastern diamondback rattlesnake is recognized by its large size, diamond- patterned dorsal (upper) side, yellowish unpatterned underbelly, dark tail with rattle, and infrared sensitive pit between the eye and nostril (Timmerman and Martin 2003, p. 2). The eastern diamondback is the largest rattlesnake in the world (Timmerman and Martin 2003, p. 1). Adult snakes average 4 to 5 feet (ft) (1.2 to 1.5 meters (m)) in length and average 4 to 5 pounds (lbs) (1.8 to 2.3 kilograms (kg)) in weight. Eastern diamondbacks in the 6-ft (1.8-m) range are considered quite large and can reach 12 lbs (5.4 kg) or more (Timmerman and Martin 2003, p. 2).

The historical (pre-European settlement or presettlement) range of the eastern diamondback rattlesnake encompasses the Coastal Plain of the southeastern United States from North Carolina to south Florida, and west to Mississippi and Louisiana (Mount 1975, Dundee and Rossman 1989, Palmer and Braswell 1995, Ernst and Ernst 2003, and Campbell and Lamar 2004 as cited in the petition on p. 9). At the broadest spatial scale, the historical range of the eastern diamondback is largely congruent with the historical distribution of the longleaf pine savanna ecosystem (Martin and Means 2000, p. 20; Waldron et al. 2008, p. 2478).

The principal native habitat of the eastern diamondback rattlesnake in presettlement times was longleaf pine savannas (Martin and Means 2000, p. 20). Longleaf pine savannas once occupied about 62 percent of the uplands of the Coastal Plain and about 40 percent of the regional landscape (Petition, p. 13). Today, nearly all of the old growth longleaf pine savannas are gone, and the eastern diamondback survives wherever its native habitats still exist or where open-canopy, ruderal forests and grasslands that mimic the native vegetation have developed (Petition, p. 12). The remaining principal large tracts of second growth longleaf pine are found on publically owned lands in the Coastal Plain, especially national forests, military bases, State forests and parks, and a few wildlife refuges (Means 2005, p. 76).

Longleaf pine savannas are maintained by frequent fires. Naturally ignited by lightning during spring and early summer, these flatwoods historically burned at intervals ranging from 1 to 4 years (Clewell 1989, p. 226).

Shelters from fire and cold are important microhabitats for the eastern diamondback rattlesnake (Martin and Means 2000, p. 18). Eastern diamondbacks seek subterranean overwintering shelters throughout their range with the exception of extreme southern Florida and the Florida Keys (Timmerman and Martin 2003, p. 8). They also use gopher tortoise ( Gopherus polyphemus ) and armadillo ( Dasypus novemcinctus ) burrows as well as fire-burned pine stumpholes and cavities at the bases of hardwood trees (Timmerman and Martin 2003, p. 8; Means 2005, p. 74).

The natural lifespan of an eastern diamondback rattlesnake is probably 15 to 20 years, but evidence from the field indicates that few individuals today live beyond 10 years, likely due to anthropogenic threats (Timmerman and Martin 2003, p. 15). Mating occurs in the late summer and early fall (Timmerman and Martin 2003, p. 15). Ovulation apparently occurs in the late spring of the following year with births centered in late August and ranging from late July to early October (Timmerman and Martin 2003, p. 15). Female eastern diamondbacks reach sexual maturity between 2 to 6 years of age (Timmerman and Martin 2003, p. 16). Eastern diamondbacks have long birth intervals and gestational periods; females reproduce only every 2 to 4 years, depending on the geographic location, age of the snake, and productivity of the environment (Petition, p. 14).

The eastern diamondback rattlesnake is an ambush predator that feeds on a wide variety of small mammals and some birds (Timmerman and Martin 2003, p. 6). The bulk of its prey consists of rabbits ( Sylvilagus sp.), cotton rats ( Sigmodon hispidus ), and gray squirrels ( Sciurus carolinensis ) (Timmerman and Martin 2003, p. 6). The open-canopy habitats of the eastern diamondback favor the development of an herbaceous groundcover on which its primary prey depend (Petition, p. 12). The eastern diamondback is terrestrial, hunting almost exclusively on the ground (Timmerman and Martin 2003, p. 6). As a member of the pit viper family, it is able to hunt in total darkness and identify warm-blooded prey via infrared detection (Timmerman and Martin 2003, p. 6). Timmerman (Petition, p. 14) found that home ranges for females averaged 114.9 acres (ac) (46.5 hectares (ha)), home ranges for males averaged 208.3 ac (84.3 ha), and that the species does not defend a territory. Eastern diamondbacks do not den communally (Means 2009, p. 138).

The species has likely been declining since the 1930s (Timmerman and Martin 2003, p. 19). The greatest population decline of eastern diamondback rattlesnakes has occurred since the 1970s, as the human population grew in the southeastern United States (Timmerman and Martin 2003, p. 19). The area of occupancy, number of subpopulations, and population size of the eastern diamondback is declining throughout the species' range (Nature Serve 2010 as cited in the petition on p. 9). The range has contracted because of habitat loss from agriculture, silviculture, urbanization, and plant succession resulting from fire suppression (Timmerman and Martin 2003, p. 9). Remaining intact range supporting large populations of the eastern diamondback is now located only in northern Florida and southern Georgia (Martin and Means 2000, p. 21). The species is likely gone from Louisiana, endangered in North Carolina, and scarce in South Carolina (Dundee and Rossman 1989; Palmer and Braswell 1995; Georgia DNR 2011; and Means 2011 as cited in the petition on p. 9).

There are other indicators of the eastern diamondback rattlesnake's decline from collection for anti-venom production, commercial sale of skin and other parts, and supplying rattlesnake roundups. Size records for thousands of eastern diamondbacks purchased by the Ross Allen Reptile Institute demonstrate that the average snake length dropped by about a foot (30.5 centimeters) between the 1930s and 1960s (Diemer-Berish 1998, p. 556; Timmerman and Martin 2003, p. 19).

The size and numbers of eastern diamondback rattlesnakes collected at “rattlesnake roundups” also provides an indicator of population status (Means 2009, p. 134). Since at least the mid-1980s, a steady decline is evident for the weights of prize-winning eastern diamondbacks collected in all four roundups in the southeastern United States (Means 2006, p. 170-171; Means 2009, p. 134). Declining size means fewer older snakes and, therefore, has negative implications for the reproductive success of local populations (Means 2009, p. 137). Heavily harvested populations are skewed to smaller and less productive animals (Enge 1993, p. 412), as clutch size is correlated with the body size of the mother (Petition, p. 15).

There has also been a decline in the numbers of eastern diamondback rattlesnakes brought into the roundups (Timmerman and Martin 2003, p. 19; Means 2009, p. 134). The number of snakes brought into the Whigham, Georgia, roundup in January 2011 was the lowest number in the history of the event, at 82 snakes, down from a high of 583 in 1992.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

In considering what factors might constitute threats; we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species so that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act.

In making this 90-day finding, we evaluated whether information regarding threats to the eastern diamondback rattlesnake, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.

The petition discusses the correlation between the status and condition of open-canopy longleaf pine savannas and the status of the eastern diamondback rattlesnake. According to the petition, in presettlement times, the eastern diamondback thrived in the longleaf pine savannas that covered the southeastern United States. But today, less than two or three percent of the longleaf pine savanna habitat remains (Noss et al. 1995, p. 3; Platt 1999 p. 24; Martin and Means 2000, p. 20). The presettlement population of the eastern diamondback has been estimated to be about 3.08 million individuals (Petition, p. 14), but the petition acknowledges that no sound baseline information exists (Timmerman and Martin 2003, p. 19). It is unlikely that the current population exceeds 100,000 snakes (Means 2011 as cited in the petition on p. 15). Thus, the petition indicates that, as in the longleaf pine savannas reduction, it is possible that the current population of the eastern diamondback is about 3 percent of the historical population (Petition, p. 16).

The petition provides that, while the eastern diamondback rattlesnake does not require longleaf pine savannas to survive, it does require open-canopy habitats that provide herbaceous groundcover for its prey species (Means 2011 as cited in the petition on p. 16). Open-canopy habitats are becoming increasingly rare, as forests are being converted into closed-canopy pine plantations, residential and commercial developments, and agriculture (Petition, p. 16). The petition asserts that there is significant agreement among scientists that the destruction of longleaf pine savannas and open-canopy forest is the single most important factor affecting the survival of the eastern diamondback (Martin and Means 2000, p. 21; Timmerman and Martin 2003, p. 21; Waldron et al. 2006, p. 419; Waldron et al. 2008, p. 2478; Means 2011 as cited in the petition on p. 16). The petition summarizes the current status of the eastern diamondback in the southeastern United States.

In North Carolina, the eastern diamondback rattlesnake is now restricted to the Lower Coastal Plain south of the Neuse River (Martin and Means 2000, p. 17; NatureServe 2010 as cited in the petition on p. 9). The eastern diamondback was once known to occupy Croatan National Forest, but it has not been documented on any lands in the State managed by the U.S. Forest Service, National Park Service, or U.S. Fish and Wildlife Service in the last 10 years (Petition, p. 11).

In South Carolina, the eastern diamondback rattlesnake is patchily distributed where it occurs in undeveloped areas on the Lower and Middle Coastal Plain and on Edisto Island and three smaller barrier islands (Martin and Means 2000, p. 17; NatureServe 2010 as cited in the petition on p. 11). South Carolina has numerous National Park Service lands and National Wildlife Refuges within the historical range of the eastern diamondback, however, only the Ace Basin National Wildlife Refuge has any records of the snake from the last 10 years (Petition, p. 11).

In Georgia, the extent of the current range of the eastern diamondback rattlesnake is probably essentially unchanged from presettlement times and includes the Coastal Strand and Barrier Island region of the Atlantic coast (Martin and Means 2000, p. 14). However, much of the habitat within the range has been lost to development, hurricanes, or absence of shelter (hardwood stumps), and its distribution is highly fragmented (Martin and Means 2000, pp. 16-17).

In Florida, the eastern diamondback has become rare or disappeared completely from many sites within its historical range that was essentially statewide, including barrier islands and keys (Martin and Means 2000, pp. 15-16). Much of the species' habitat has been lost to urbanization and conversion to citrus groves and improved pasture in the Florida peninsula during the last half of the twentieth century (Martin and Means 2000, p. 15). Florida encompasses half of the species' current range (Timmerman and Martin 2003, p. 41).

In Alabama, the eastern diamondback rattlesnake occurs in the Lower Coastal Plain where longleaf pine and wiregrass originally dominated the uplands (NatureServe 2010 as cited in the petition p. 12). It is found primarily in the southwestern part of the State, in southern Washington and northern Mobile Counties, Alabama (Martin and Means 2000, p. 13; Timmerman and Martin 2003, p. 9). The only Federal land in Alabama with a record of the eastern diamondback within the last 10 years is the Bon Secour National Wildlife Refuge (NatureServe 2010 as cited in the petition on p. 12).

In Mississippi, the eastern diamondback rattlesnake may have ranged to the limits of the State's longleaf pine forest, but was not known to occur on barrier islands (NatureServe 2010 as cited in the petition on p. 12). Today, the species is uncommon because its habitat is being converted to agriculture and it is hunted for the roundup at the City of Opp, Alabama, and the skin trade. Its range is now being confined mainly to the longleaf pine hills and pine flats regions (Martin and Means 2000, pp. 13-14; Timmerman and Martin 2003, p. 43; NatureServe 2010 as cited in the petition on p. 12). The three national wildlife refuges in the State within the historical range of the species lack any records of the eastern diamondback from the last 10 years (Petition, p. 12).

In Louisiana, the eastern diamondback rattlesnake was historically confined to the eastern-most three of the seven Florida parishes (the area of Louisiana north of Lake Pontchartrain, east of the Mississippi River and Bayou Manchac and south of the Mississippi border) and was never reported from the barrier islands (NatureServe 2010 as cited in the petition p. 12). The eastern diamondback is likely extirpated in Louisiana. It is possible that the species may exist in extreme northeastern Louisiana, but is so rare that it is functionally extinct (Martin and Means 2000, p. 11; Timmerman and Martin 2003, pp. 9, 20, 43). The snake was last observed in Louisiana in 1995 (Louisiana Department of Fisheries and Wildlife 2010 Web site http://www.wlf.louisiana.gov/serpentes/eastern-diamondback-rattlesnake as cited in the petition on p. 12).

The petition also asserts that the quality of the open-canopy and longleaf pine savannas has declined—this being mainly due to the absence of fire (Petition, p. 13). Without active fire management, remnant longleaf pine ecosystems convert to closed-canopy forests and become unsuitable for snakes such as the eastern diamondback (Petition, pp. 13, 16). In presettlement times, lightning-caused fires burned on average every 1 to 4 years, keeping the canopy open. However, in the past 200 years, human settlement of the Coastal Plain has drastically altered the normal, summertime fire cycle. Not only have wildfires been actively suppressed following ignition, but roads, towns, agricultural fields, and other developments impede the widespread, weeks-long fires that swept the Coastal Plain regularly in presettlement times (Means 2011 as cited in the petition on p. 16). The disruption of the natural fire cycle has resulted in an increase in slash and loblolly pine on sites formerly dominated by longleaf pine, an increase in hardwood understory, and a decrease in herbaceous ground cover (Wolfe et al. 1988, p. 132; Yager et al. 2007, p. 428).

The petition states that the species' range reduction, habitat loss and degradation, and lack of fire are contributing heavily to the population reduction of the eastern diamondback rattlesnake. The petition asserts that remaining population size of the eastern diamondback of three percent corresponds to the amount of remaining historical longleaf pine savanna habitat of two to three percent. Similar information concerning the life history, status, and distribution of the eastern diamondback and availability of suitable habitat (longleaf pine savannas and open-canopy forests) is also found in the Service's files (Timmerman and Means 2003, entire; America's Longleaf Regional Working Group 2009, entire). The Region-wide Conservation Plan for Longleaf states that longleaf pine forests are a remnant of their former 90 million ac (36.4 million ha) (America's Longleaf Regional Working Group 2009, p. 1). As indicated in the petition, less than three percent or an estimated 3.4 million ac (1.4 million ha) remain (America's Longleaf Regional Working Group 2009, p. 1) of longleaf forests. Fragmentation, unsustainable harvest, conversion to other land uses and vegetative types, invasive species, and exclusion of natural fire regimes have cumulatively resulted in declines in the extent, condition, and future sustainability of the system. The loss of 97 percent of the longleaf forests is a dramatic change in the landscape. While no discussion of the eastern diamondback is provided in the Conservation Plan, the species is listed as a species of conservation interest in the longleaf pine ecosystem (America's Longleaf Regional Working Group 2009, pp. 41-42).

Prescribed burning has been a tool used on forested lands to restore the natural fire regime, but liability, reduced budgets, unfavorable weather, and backlogged, dangerously high fuel loads from years of fire suppression have allowed the quality of habitat maintained by fires to degrade and become less or, in many cases, unsuitable for the eastern diamondback rattlesnake (Wade and Lundsford 1989, pp. 1-2; Kaufman et al. undated, pp. 2, 4-8).

In summary, we find that the information presented in the petition, as well as the information available in our files, presents substantial scientific or commercial information indicating that the petitioned action may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range primarily as a result of the conversion of natural pine habitat to silviculture, agriculture, urbanization, and to fire suppression.

According to the petition, eastern diamondback rattlesnakes are harvested for their skins and other parts including venom, and are killed for recreation (Martin and Means 2000, p. 21; Means 2009, p. 139; Means 2011 as cited in the petition on p. 19). This exploitation by humans is having a severe impact on remaining eastern diamondback rattlesnake populations (Martin and Means 2000, p. 21; Means 2009, p. 139; Means 2011 as cited in the petition on p. 19). Various markets for eastern diamondback rattlesnakes have existed for decades (Petition, p. 19). The rattlesnake skin trade likely takes thousands of eastern diamondbacks each year, with no limit placed on annual harvest (Timmerman and Martin 2003, p. 22). From 1990 to 1994, Florida hide dealers and taxidermists purchased 42,788 eastern diamondbacks, primarily from Georgia, Alabama, and Florida (Timmerman and Martin 2003, p. 40).

According to the petition, intensive collection of rattlesnakes for “rattlesnake roundups” is affecting the eastern diamondback rattlesnake (Diemer-Berish 1998, p. 556). In rattlesnake roundups, rattlesnakes are collected in competitions for prizes (Timmerman and Martin 2003, p. 22). Some of the snakes including eastern diamondbacks are then sold for skins and other parts. Means (2009, p. 132) analyzed 50 years of data for the longest running roundups involving the eastern diamondback. At least 23 roundups were held for the purpose of downsizing the population of the eastern diamondback (Petition, p. 20). Hunters that gather rattlesnakes for roundups often use the practice of pouring gasoline or ammonia through a hose placed inside the burrows of gopher tortoises in winter (Petition, p. 20). This practice often kills the snakes and impacts other fauna inhabiting the burrows (Petition 2011, p. 20). Means (as cited in the petition on p. 20) also found that the total number of captured rattlesnakes declined by 67 percent in the last two decades. Thus, the petition asserts that the numbers of snakes collected for rattlesnake roundups likely are an underestimate of the number of snakes actually killed by hunters (Petition, p. 20).

The petition stated that eastern diamondback rattlesnakes are also taken for venom extraction. The Ross Allen Reptile Institute purchased and supplied most of the venom to U.S. laboratories during the development of anti-venom from 1929 to 1940, and for the production of anti-venom during World War II (Petition, p. 20). Other laboratories have also purchased thousands of eastern diamondbacks for the purpose of venom extraction (Petition, p. 20).

Information concerning the harvest of eastern diamondback rattlesnakes similar to that presented in the petition is found in Service files. Since the 1930s there has been a variety of markets for the eastern diamondback. The snake's meat has been used as a food delicacy, skins for clothing, parts for curio trade, venom for human safety, and they have been sold at festivals or events for recreation and tourism (Timmerman and Martin 2003, pp. 21-22). In addition to the decline in the capture rate of snakes (harvest and research) and the potential reasons for the decline (fewer snakes, market changes, and regulation), the effects to eastern diamondback populations include the disappearance of larger eastern diamondbacks and increased capture of smaller diamondbacks (Timmerman and Martin 2003, pp. 19-20).

In summary, we find that the information presented in the petition, as well as the information available in our files, presents substantial scientific or commercial information indicating that the petitioned action may be warranted due to the overutilization of the species for commercial, recreational, scientific, or educational purposes.

The petition provides that the eastern diamondback rattlesnake has a long list of likely natural predators, including ungulates, raccoons, opossum, dogs, cats, raptors, storks, and other snakes (Timmerman and Martin 2003, p. 17; Means 2011 as cited in the petition on p. 21). However, natural predation does not appear to be a threat to the snake. In addition, the petition provides that disease does not appear to be a threat to the eastern diamondback and provided no additional information concerning the potential threat of diseases to the eastern diamondback (Petition, p. 21).

Information concerning predation and diseases of the eastern diamondback rattlesnake in the Service's files is similar to the information presented in the petition. Young and adult eastern diamondbacks are predated upon. According to Timmerman and Martin (2003, p. 17), there have been numerous species of wildlife implicated in the death of even the largest of rattlesnakes, including swine, raccoons, otters, dogs, cats, raptorial birds, storks, eastern indigo snakes, king snakes, black snakes, coral snakes, and the river frog ( Rana heckscheri ). A white-tailed deer was observed stomping a radio-tagged male eastern diamondback (Timmerman and Martin 2003, p. 17). However, the Service has no information in our files that indicates the level of impact resulting from predation by other wildlife (native and non-native) has resulted in population-level effects.

The petition does not provide any information about disease in eastern diamondback rattlesnakes. The Service has no information in our files on diseases that affect or could affect the species. Wilson and Porras (1983 as cited in Timmerman and Martin 2003, p. 21) reported that the eastern diamondback was one of several south Florida species that were occasionally found emaciated and lethargic. The reasons were unknown, and specimens sent for pathological analysis turned up no evidence of bacteriological or parasitic infestation.

In summary, we find that the information presented in the petition, as well as the information available in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to disease or predation.

The petition contends that populations of the eastern diamondback rattlesnake are closely correlated with the amount and condition of open-canopy pine, particularly longleaf pine forests. The petition states that the species' range reduction, habitat loss, and degradation are contributing heavily to the population reduction of the eastern diamondback. Approximately 34 percent of remaining longleaf pine habitats occur on federally owned lands, 11 percent occur on State or locally-owned lands, and 55 percent on privately owned lands (Means 2011 as cited in the petition on p. 22).

The petition presents information that the loss of longleaf pine savannas is the single most important factor affecting the survival of the eastern diamondback rattlesnake. While there are ongoing restoration efforts that vary in scale and land ownership, nearly all of the efforts are purely voluntary and without dedicated funding. Uncertainty remains as to whether these actions will continue in the future. In addition, the petition asserts that, none of the efforts to restore longleaf pine are specifically aimed at protecting eastern diamondbacks. They also assert that on Federal lands the conservation and restoration programs are not legally mandated or require monitoring to measure success of habitat improvements. The petition states as a consequence, because these regulatory mechanisms are lacking, they are inadequate and a threat to the eastern diamondback (Petition, pp. 22-23).

The petition also contends that habitat for the eastern diamondback rattlesnake is inadequately protected under State law or on State lands. The petitioners indicate they are unaware of any State regulations providing permitting oversight or requiring conservation benefit to eastern diamondbacks. The eastern diamondback receives some benefit from State regulations protecting gopher tortoise habitat, but only in Florida where there are some regulations (Petition, p. 24). Habitat on State-managed lands is protected in small amounts but is inadequate because the management actions are not conducted to specifically benefit the eastern diamondback (Petition, p. 24).

The petition indicates that the majority of remaining longleaf pine is on private lands, where habitat is being rapidly lost and not all regenerated to longleaf pine. Modest conservation value is derived from voluntary participation with restoration programs. In addition to restoration, land acquisition programs are in place. While the eastern diamondback would likely benefit from these acquisitions, the amount of habitat that will be conserved and the distribution of extant diamondback populations on these properties is not known. The petition states that these efforts are purely voluntary and, therefore, are not adequate to protect the snakes (Petition, p. 24).

Regarding human exploitation, among the States, only North Carolina provides legal protection for the eastern diamondback rattlesnake where it is State-listed as endangered. The eastern diamondback is listed as a species of special concern in South Carolina, Alabama, and Florida, but the petition contends that these designations provide no legal or regulatory protection (Petition, p. 26). Georgia has a law that prohibits the taking of nongame wildlife, but venomous snakes are specifically excluded (Petition, p. 26). In other words, eastern diamondbacks are wholly unprotected in South Carolina, Georgia, Florida, Mississippi, Alabama, and Louisiana. According to the petition, unlimited numbers of the snakes may be killed in all but one of the seven States, and, therefore, the lack of regulatory mechanisms facilitates overexploitation of the species. The petition concludes that inadequacy is a factor threatening the species (Petition, pp. 26-27).

Federal lands within the historical range of the eastern diamondback rattlesnake are managed by the Department of the Interior (units of the National Park System, National Wildlife Refuges, and Bureau of Land Management (small areas)), Department of Agriculture (U.S. Forest Service), and Department of Defense (DOD) (U.S. Air Force, U.S. Army, and U.S. Navy). These Federal land owners or managers are tasked with implementing natural resource management plans that include conservation and restoration of habitats and species and regulation of activities related to agency mission, other land users, and visitors. As general conservation programs, these programs are adequate on Federal lands. However, threats to the eastern diamondback may remain because of lack of implementation, compliance, or enforcement or because these programs do not target conservation of the species. Lack of implementation or compliance may be a result of funding, work priorities, and staffing. The Service has no information concerning the implementation of the plans and enforcement of regulations protecting the snake from harm. Insufficient implementation or enforcement could become a threat to the species in the future if the species continues to decline in numbers on Federal lands. In addition, the Service is not aware that any of these Federal land programs have management actions geared specifically to benefit eastern diamondbacks.

Eastern diamondback rattlesnakes overlap suitable habitats with other federally protected species and derive conservation benefits through their protection. Eastern diamondbacks share suitable habitat with the eastern indigo snake ( Drymarchon couperi ) and the gopher tortoise. Indigo snakes are listed as threatened under the Act (January 31, 1978; 50 CFR part 17.11(h)). Gopher tortoises are listed as threatened under the Act in the western portion of their range (west of the Mobile and Tombigbee Rivers in Alabama, Mississippi, and Louisiana) (July 7, 1987; 50 CFR part 17.11(h)). No critical habitat is designated for either the indigo snake or the gopher tortoise listed in the western portion of its range.

The petition suggests that eastern diamondback rattlesnakes are protected by state law only in North Carolina (NC ST § 113-331-350) and are wholly unprotected in South Carolina, Georgia, Florida, Mississippi, Alabama, and Louisiana. This is not entirely accurate. State parks and other State lands are governed by regulations (which are based in State statutes) that protect the snake inasmuch as they protect all other species of wildlife. For example in State Parks in Florida, all plants, animals and park property are protected and their collection, destruction or disturbance of plants, animals or park property is prohibited (F.S. Chap. 258.008(b) and (c)). In South Carolina, killing, harming, or harassing any mammal, bird, reptile, or amphibian, except by permit issued by the South Carolina Department of Natural Resources for designated Game Management Areas is unlawful (Title 51—Parks, Recreation and Tourism, Chap. 3, State Parks, Sec. 51-3-145 (B)). In Georgia any person who hunts, traps, fishes, possesses, or transports wildlife in violation of the wildlife laws and regulations violates the conditions under which this right is extended; and any wildlife then on his person or within his immediate possession is deemed to be wildlife possessed in violation of the law and is subject to seizure by the department pursuant to Georgia Code Section 27-1-21 (Georgia Code Section 27-1-3). On the other hand, if the rules do not result in compliance or are not adequately enforced, this could render the rules relatively inconsequential in providing real protection for the snake. The Service has no information concerning the compliance with or the enforcement of the State regulations.

While regulations to protect habitat and wildlife in general on Federal and State public lands do exist, almost none specifically target protection of the eastern diamondback rattlesnake. Approximately 45 percent of the snake's remaining habitat is under public ownership, and the remaining 55 percent of the habitat is on private lands.

Existing land use regulations on private lands within the eastern diamondback rattlesnake's historical range are implemented by the individual States and local governments. With the exception of North Carolina's State protection, the Service is aware of no regulatory mechanisms that are in place and specifically intended to protect the eastern diamondback. Projections of nationwide rural land development excluding Federal lands are largest in the Southeast at 15 percent (White et al. 2008, p. 10). The spatial arrangement of rural lands that are converted to developed uses, even for small areas, may magnify the ecological impacts from urbanization, including the loss of wildlife habitat (White et al. 2008, p. 10). Only in the last decade has the concept of green infrastructure that balances development and land protection (benefits wildlife like the eastern diamondback) evolved from a novelty practice to a national planning method ( http://www.conservationfund.org/green_infrastructure ). This may be due in part to the scarcity of undeveloped land areas and the realization of their importance for ecological conservation (water quality, habitat, and wildlife), safety (wildfires), and the amenities afforded by living in close proximity to them (recreation, aesthetics, green space, and land values) (White et al. 2008, p. 11).

Long-term survival of the eastern diamondback rattlesnake will depend almost entirely upon lands set aside for conservation (Timmerman and Martin 2003, p. 41). The Service finds that there are regulatory mechanisms in place in the form of State and Federal regulations governing their respective owned and managed lands. However, implementation, compliance, or enforcement of the regulations is important to the conservation of the eastern diamondback and currently is unknown.

The petition suggests that there are no existing regulations that protect the eastern diamondback rattlesnake and thus regulatory mechanisms are inadequate by their absence. There are regulatory mechanisms in place on State and Federal lands that lend protection in general to all wildlife; while not specific to the eastern diamondback, they do provide protection to the species. Thus, there are existing regulatory mechanisms that protect the eastern diamondback contrary to the assertions in the petition. The implementation of, compliance with, and enforcement of those regulatory mechanisms are unknown.

Thus, the information provided in our files does not support the conclusion stated in the petition that there are no existing regulatory mechanisms to protect the eastern diamondback rattlesnake. However, the information in our files supports the conclusion that the existing regulatory mechanisms may be inadequate because there is no evidence that existing implementation of, compliance with, and enforcement of the mechanisms is effective in protecting the eastern diamondback on private, local, State, or Federal lands.

In summary, we find that the information provided in the petition and the Service's files provide substantial scientific or commercial information indicating that the petitioned action may be warranted due to the inadequacy of existing regulatory mechanisms that address threats to the eastern diamondback rattlesnake.

The petition asserts that human-caused climate change is a factor that may impact the eastern diamondback rattlesnake. The petition indicates that, because the species is restricted to coastal areas (0 to 1,640 ft (0 to 500 m) above sea level), rising sea levels due to climate change may inundate some habitat occupied by the species and the species may not be able to adapt to changes in the climate at a rate needed for survival. The petition also addresses possible threats to the eastern diamondback from pesticide use, snakes killed out of fear, and the inadequate amount of prescribed fire to maintain good quality habitat. Each of these potential threats is addressed below.

An amendment to the petition provided a paper (Lawing and Polly 2011, entire) on rattlesnakes and climate change. Lawing and Polly (2011, p. 2) present that snakes are particularly useful for understanding the effects of climate change on terrestrial vertebrate species because their ectothermic (controlling body temperature by external means) physiology is highly dependent on the ambient temperature. Lawing and Polly (2011, p. 2) chose rattlesnakes for their climate modeling because the geographic distributions of some species extend north of former glacial margins, assuring that their geographic distributions have, in fact, changed over recent geological history. Climate models were examined predicting the probable suitable habitat at the year 2100, under a climate change increase of 1.1 degrees Centigrade (C) (34 degrees Fahrenheit (F)) and 6.4 degrees C (43.5 F). The models predict for the eastern diamondback rattlesnake a great reduction in suitable habitat availability by 2100 with an average change of 1.1 degrees C (34 degrees F), and zero suitable habitat availability by the year 2100 with an average increase of 6.4 degrees C (43.5 degrees F) (Lawing and Polly 2011, p. 11). The study essentially says that the eastern diamondback rattlesnake is one of these particularly sensitive species, and that the rate of climate change and the subsequent changes to suitable habitat will likely occur too quickly for the eastern diamondback rattlesnake to adapt and survive because suitable habitat will diminish significantly, and disappear altogether at the extreme change of 6.4 degrees C (43.5 F) by 2100 (Lawing and Polly 2011, p. 11).

The petition indicates that the eastern diamondback rattlesnake may be susceptible to pesticide poisoning, but the extent of this threat is unknown (Timmerman and Martin 2003, p. 21). No other information is provided in the petition relative to threats of pesticides on the snake.

The petition asserts that the eastern diamondback rattlesnake is one of the most heavily persecuted reptiles in the eastern United States (Timmerman and Martin 2003, p. 41). The eastern diamondback rattlesnake is feared by many people (as are snakes in general, venomous and non-venomous) and often are killed whenever and wherever they are encountered (Petition, p. 21). Human persecution is a primary threat to the eastern diamondback and has contributed significantly to the decline of the species (Petition, p. 21).

The petition did not provide any information supporting the conclusion that pesticides are a current or potential threat to the eastern diamondback rattlesnake. The Service has no information in our files on pesticides and impacts to the eastern diamondback.

The petition presents documentation and other information about the killing of eastern diamondback rattlesnakes by humans out of fear, malice, adventure, and excitement. The petition asserts that killing of this type has contributed significantly to the decline of the eastern diamondback. However, none of the information presented in the petition clearly distinguishes the difference between commercial collection or harvest and killing for other reasons and contribution to the species' decline. While the Service has no specific information in our files related to killing of eastern diamondbacks because of fear of or malice, we are cognizant of the public's concern about venomous animals in general and the responses to those fears. We are aware of inaccurate and largely undeserved folklore that result in eastern diamondbacks and other snakes being killed simply because they exist, or for adventure and excitement (Means 2009, p. 1).

Consideration of ongoing and projected climate change is a component of our analyses under the Act. Described in general terms, “climate change” refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or (Intergovernmental Panel on Climate Change (IPCC) 2007, p. 78). Various types of changes in climate can have direct or indirect effects on species, and these may be positive or negative depending on the species and other relevant considerations, including interacting effects with existing habitat fragmentation or other non-climate variables.

Information provided in the petition concerning the potential for negative effects to the eastern diamondback rattlesnake from climate change presents compelling scenarios. However, there is no information in Service files concerning the eastern diamondback and climate change.

Ecologists consider fire suppression to be the primary reason for the degradation of remaining longleaf pine forest habitat (Wolfe et al. 1988, p. 132). Prescribed burning is a significant part of many habitat management plans on private and public lands. However, the implementation of prescribed burning has been inconsistent due to financial constraints and limitations of weather (drought, wind direction, etc.) that restrict the number of opportunities to burn (Kaufman et al., undated, pp. 2, 4-8). Many State and Federal lands use prescribed fire to restore and maintain fire-dependent plant communities and habitats as part of their respective management plans. This is usually beneficial to the eastern diamondback rattlesnake, as it is to other species that depend on fire dependent open-canopy pine forests for survival. Even though this action helps maintain and restore habitat necessary for the survival of the eastern diamondback, remaining suitable habitat is a fraction of the historical range. The prescribed burn programs of State and Federal lands, as well as some large tracts of private lands, improve and restore habitat important to the eastern diamondback, however much more fire management is needed to maintain and restore current and historical portions of its range. Additionally, fire management is often impeded by unsuitable weather, dangerous burn conditions, lack of funding, concern of adjacent landowners, or unwillingness to burn in difficult conditions because of safety issues. Often, prescribed fire management focuses more on reducing fuel loading and lessening the potential for wildfire than on maintaining high-quality areas with respect to habitat suitability for eastern diamondback rattlesnakes (Kaufman et al. undated, pp. 2, 4-8). In other words, there may simply not be enough prescribed fire in terms of area or frequency to restore or maintain the open-canopy habitats on which the eastern diamondback depends.

In summary, the Service finds that the petition and information in our files does not provide substantial scientific or commercial information indicating that listing may be warranted due to the effects of pesticide use or snakes killed out of fear or for adventure. However, prescribed fire is one of the most important tools for restoration and maintenance of suitable habitat for the eastern diamondback rattlesnake. Based on the information available to this assessment, the limited area and frequency of prescribed fire occurring for restoration and maintenance of suitable habitat may pose a significant threat to the continued existence of the eastern diamondback. Additionally, new scientific information and modeling data cited in the petition are demonstrating that the eastern diamondback may not likely be able to adapt to the change and more importantly, the rate of change, in its habitat due to climate change.

Therefore, the Service finds that the information provided in the petition, as well as other information in our files, presents substantial scientific or commercial information indicating that the petitioned action may be warranted due to other natural or manmade factors.

On the basis of our determination under section 4(b)(3)(A) of the Act, we determine that the petition presents substantial scientific or commercial information indicating that listing the eastern diamondback rattlesnake throughout its entire range may be warranted. This finding is based on information provided under factors A, B, D, and E. We determine that the information provided under factor C is not substantial.

Because we have found that the petition presents substantial information indicating that listing the eastern diamondback rattlesnake may be warranted, we are initiating a status review to determine whether listing the eastern diamondback rattlesnake under the Act is warranted.

The “substantial information” standard for a 90-day finding differs from the Endangered Species Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.

A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Panama City, FL, Ecological Services Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this notice are the staff members of the Panama City, FL, Ecological Services Office.

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

Background

All sea turtles in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA). The Kemp's ridley ( Lepidochelys kempii ), leatherback ( Dermochelys coriacea ), and hawksbill ( Eretmochelys imbricata ) turtles are listed as endangered. The loggerhead ( Caretta caretta; Northwest Atlantic distinct population segment) and green ( Chelonia mydas ) turtles are listed as threatened, except for breeding populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered.

Sea turtles are incidentally taken, and some are killed, as a result of numerous activities, including fishery-related trawling activities in the Gulf of Mexico and along the Atlantic seaboard. Under the ESA and its implementing regulations, taking (harassing, injuring or killing) sea turtles is prohibited, except as identified in 50 CFR 223.206, according to the terms and conditions of a biological opinion issued under section 7 of the ESA, or according to an incidental take permit issued under section 10 of the ESA. Incidentally taking threatened sea turtles during shrimp trawling is exempted from the taking prohibition of section 9 of the ESA if the conservation measures specified in the sea turtle conservation regulations (50 CFR 223.206) are followed. The same conservation measures also apply to endangered sea turtles (50 CFR 224.104).

The regulations require most shrimp trawlers operating in the southeastern United States to have a NMFS-approved TED installed in each net that is rigged for fishing, to allow sea turtles to escape. TEDs currently approved by NMFS include single-grid hard TEDs and hooped hard TEDs conforming to a generic description and one type of soft TED—the Parker soft TED (see 50 CFR 223.207). However, skimmer trawls, pusher-head trawls, and vessels using wing nets currently may employ alternative tow time restrictions in lieu of TEDs, under 50 CFR 223.206(d)(2)(ii)(A). The alternative tow time restrictions currently limit tow times to 55 minutes from April 1 through October 31, and 75 minutes from November 1 through March 31.

TEDs incorporate an escape opening, usually covered by a webbing flap, which allows sea turtles to escape from trawl nets. To be approved by NMFS, a TED design must be shown to be 97 percent effective in excluding sea turtles during testing based upon specific testing protocols (50 CFR 223.207(e)(1)). Most approved hard TEDs are described in the regulations (50 CFR 223.207(a)) according to generic criteria based upon certain parameters of TED design, configuration, and installation, including height and width dimensions of the TED opening through which the turtles escape.

Over the past two years we have documented elevated sea turtle strandings in the northern Gulf of Mexico, particularly throughout the Mississippi Sound area. In the first three weeks of June 2010, over 120 sea turtle strandings were reported from Mississippi and Alabama waters, none of which exhibited any signs of external oiling to indicate effects associated with the Deepwater Horizon (DWH) oil spill event. A total of 644 sea turtle strandings were reported in 2010 from Louisiana, Mississippi, and Alabama waters, 561 (87 percent) of which were Kemp's ridley sea turtles. During March through May of 2011, 267 sea turtle strandings were reported from Mississippi and Alabama waters alone. A total of 525 sea turtle strandings were reported in 2011 from Louisiana, Mississippi, and Alabama waters, with the majority (455) occurring from March through July, 390 (86 percent) of which were Kemp's ridley sea turtles. These stranding numbers are significantly greater than reported in past years; Louisiana, Mississippi, and Alabama reported 42 and 73 total sea turtle strandings for 2008 and 2009, respectively. Strandings typically represent only a small fraction of actual mortality; therefore, these stranding events represent significant amounts of sea turtle mortality. However, it should be noted that stranding coverage has increased considerably due to the DWH oil spill event, which has increased the likelihood of observing stranded animals.

Necropsy results indicate a significant number of stranded turtles from both the 2010 and 2011 events likely perished due to forced submergence (drowning), which is commonly associated with fishery interactions. Additionally, information from NMFS and Mississippi Department of Marine Resources (MDMR) enforcement, stemming from the monitoring of Mississippi Sound skimmer trawl vessels in 2010, indicate the vessels in the skimmer trawl fleet exceed alternative tow time requirements.

Because of the elevated strandings in 2010 and 2011, as well as issues identified within the shrimp fisheries that indicated an evaluation of alternative tow time restrictions within the skimmer trawl sector was warranted, NMFS began developing a draft environmental impact statement (DEIS); a notice of availability is expected to publish in the Federal Register on May 18, 2012. The analysis included in the DEIS demonstrates that withdrawing the alternative tow time restriction and requiring all skimmer trawls, pusher-head trawls, and wing nets rigged for fishing to use TEDs in their nets would reduce incidental bycatch and mortality of sea turtles in the southeastern U.S. shrimp fisheries and, therefore, may be a necessary and advisable action to conserve threatened sea turtle species.

While the recent stranding events acted as a catalyst for examining sea turtle bycatch issues within the shrimp fisheries and, ultimately, this proposed rule, NMFS has previously considered a TED requirement for skimmer trawls, pusher-head trawls, and wing nets (butterfly trawls). For example, on May 8, 2009, NMFS published a notice of intent (NOI) to prepare an environmental impact statement and conduct public scoping meetings, and made available a scoping document presenting various approaches to regulating trawl fisheries in the Atlantic Ocean (74 FR 21627). The scoping document suggested using a phased approach to implement regulations to reduce sea turtle captures by requiring capture mitigation strategies (i.e., TEDs) as technology becomes available. “Phase I” would have further regulated the summer flounder and Atlantic sea scallop fisheries, as well as introduce regulations for the whelk, croaker/weakfish, and calico scallop trawl fisheries. Regulation of fisheries in “Phase II,” which included sheepshead, black drum, king whiting, porgy, southeastern U.S. shrimp (skimmer trawl and trynets), Spanish sardine, scad, ladyfish, squid, mackerel, butterfish, and Northeast multispecies (large- and small-mesh) trawl fisheries, would be evaluated for subsequent rulemaking. Finally, “Phase III” regulations would have been developed for the skate, horseshoe crab, monkfish, bluefish, spiny dogfish, and herring trawl fisheries, and any other trawl fisheries not previously identified or considered. The NOI and scoping document acknowledged, however, that the implementation sequence could shift we obtain testing results and new information about additional trawl fisheries.

Additionally, in June 2010, NMFS prepared but never published an emergency rule in accordance with Section 4(b)(7) of the ESA (16 U.S.C. 1533(b)(7)) to require TEDs for all skimmer trawls, pusher-head trawls, and wing nets (butterfly trawls) rigged for fishing in Mississippi and Alabama state waters. Before the emergency rule could be implemented, however, oil from the DWH oil spill event reached nearshore areas of the Northern Gulf of Mexico, and the states closed their waters to all fishing.

Developed in the early 1980s, the skimmer trawl was intended for use in some areas primarily to catch white shrimp, which have the ability to jump over the headrope of standard trawls while being towed in shallow water. The skimmer net frame allows the net to be elevated above the water while the net is fishing, thus preventing shrimp from escaping over the top. Owing to increased shrimp catch rates, less debris and/or fish and other bycatch, and lower fuel consumption than otter trawlers, the use of skimmer nets quickly spread throughout Louisiana, Mississippi, and Alabama. The basic components of a skimmer trawl include a frame, the net, heavy weights, skids or “shoes,” and tickler chains. The net frame is usually constructed of steel or aluminum pipe or tubing and is either L-shaped (with an additional stiff leg) or a trapezoid design. When net frames are deployed, they are aligned perpendicularly to the vessel and cocked or tilted forward and slightly upward. This position allows the net to fish better and reduces the chance of the leading edge of the skid digging into the bottom and subsequently damaging the gear. The frames are maintained in this position by two or more stays or cables to the bow. The outer leg of the frame is held in position with a “stiff leg” to the horizontal pipe and determines the maximum depth at which each net is capable of working. The skid, or “shoe,” is attached to the bottom of the outer leg, which allows the frame to ride along the bottom, rising and falling with the bottom contour. The bottom of the gear includes tickler chains and lead lines. The skimmer trawl is the most popular trawl type after the otter trawl, and is widely utilized in Louisiana waters.

Vietnamese fishermen who moved into Louisiana in the early 1980s introduced the pusher-head trawl, also known as the “xipe” or chopstick net. The pusher-head trawl net is attached to a rigid or flexible frame similar to the wing net; however, the frame mounted on the bow of the boat is attached to a pair of skids and fished by pushing the net along the bottom.

Wing nets (butterfly trawls or “paupiers”) were introduced in the 1950s and used on stationary platforms and on shrimp boats either under power or while anchored. A wing net consists of square metal frame which forms the mouth of the net. Webbing is attached to the frame and tapers back to a cod end. The net can be fished from a stationary platform or a pair of nets can be attached to either side of a vessel. The vessel is then anchored in tidal current or the nets are “pushed” through the water by the vessel. The contents of the wing net, as well as the contents of skimmer and pusher-head trawls, can be picked up and dumped without raising the entire net out of the water, which is necessary with an otter trawl. While wing nets, as well as pusher-head trawls, are allowable gear types in the Northern Gulf of Mexico, they are not as common as skimmer trawls. For example, while the MDMR does not differentiate gear type within their shrimp fishery, a 2008 survey of trip tickets indicated there were approximately 247 otter trawl, 56 skimmer trawl, 4 butterfly net, and 2 pusher-head trawls active in Mississippi.

While there is available information documenting sea turtle captures in the skimmer trawl fisheries (e.g., Price and Gearheart 2011), skimmer trawls, pusher-head trawls, and wing nets were initially allowed to use alternative tow time restrictions in lieu of TEDs under the assumption that the trawl bags were typically retrieved at intervals that would not be fatal to most sea turtles that were captured in the net. The December 2, 2002 biological opinion (NMFS 2002) noted that the tow-time authorization instead of TEDs was for fisheries that, “out of physical, practical, or economic necessity, require fishermen to limit their tow times naturally.” But information from MDMR indicates that some participants in their skimmer trawl fishery are not aware of the tow time restrictions, and violations of the tow time restrictions have occurred and still occur within the fishery.

Moreover, tow times restrictions are difficult to enforce. Documenting a tow time violation requires enforcement personnel to be in close proximity of a skimmer trawl to monitor gear deployment and recovery, and to record the time when the codend enters the water until it is removed. Also, enforcement personnel need to remain undetected for at least 55 minutes—practically impossible at sea—or else their presence may bias a vessel captain's operational procedure. There are also concerns repeated captures may result in turtle mortality in times and areas where sea turtle abundance and skimmer trawl fishing effort is high (Sasso and Epperly 2006).

In the DEIS, we calculated sea turtle catch per unit effort rates based on observed effort in the skimmer trawl fisheries and relative abundances of sea turtle species. These rates were multiplied by overall effort (i.e., 585,576 effort hours in the Northern Gulf of Mexico skimmer trawl fisheries and 6,576 effort hours in the North Carolina skimmer trawl fishery) to determine total sea turtle take in the skimmer trawl fisheries. The analysis resulted in a total anticipated take of 28,127 captured sea turtles in the combined skimmer trawl, pusher-head trawl, and wing net fisheries.

If skimmer trawl vessels regularly exceed the tow time restrictions and kill incidentally captured sea turtles, requiring TEDs instead of tow times may significantly reduce sea turtle mortality by allowing them to escape the net and avoid drowning. In order to extrapolate the sea turtle capture estimates to obtain an associated mortality estimate for the skimmer trawl fisheries operating with installed TEDs, the DEIS analysis considered both the benefits of exclusion through properly installed TEDs and the effect of TED violations on sea turtle capture rates and total mortalities. This analysis was accomplished by calculating overall compliance and non-compliance rates in the Gulf of Mexico and the Atlantic otter trawl shrimp fisheries (to serve as a proxy for the skimmer trawl fisheries, assuming TED compliance would be similar between the two gear types) based on vessel boarding data from TED inspections. Using this data, we estimate that withdrawing the alternative tow time restriction in the preferred alternative would prevent 5,515 sea turtle mortalities in the combined skimmer trawl fisheries. Therefore, we preliminarily determined that the measures proposed here are a necessary and advisable to conserve threatened sea turtle species. We have further preliminarily determined that the measures proposed here are necessary and appropriate to enforce the requirements of the ESA.

We anticipate to make this proposed TED requirement effective by the start of the 2013 shrimping season, not later than March 15, 2013.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA), as required by Section 603 of the Regulatory Flexibility Act, for this proposed rule. The IRFA describes the economic impact this proposed rule, if implemented, would have on small entities. A description of the proposed rule, why it is being considered, the objectives of, and legal basis for this proposed rule are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from NMFS (see ADDRESSES ). A summary of the IRFA follows.

No duplicative, overlapping, or conflicting Federal rules have been identified.

We expect this proposed rule will directly affect fishermen who use skimmer trawls, pusher-head trawls, and wing nets (butterfly trawls). This gear is only used in Louisiana, Mississippi, Alabama, Florida, and North Carolina. Florida already requires vessels employing this gear to use TEDs. Among the remaining states, approximately 2,435 active vessels have been identified that use this gear (2,248 in Louisiana, 62 in Mississippi, 60 in Alabama, and 65 in North Carolina). We expect this rule, if implemented, will affect all of these vessels.

The Small Business Administration has established size criteria for all major industry sectors in the U.S. including fish harvesters. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4 million (North American Industry Classification System code 114112, shellfish fishing) for all its affiliated operations worldwide.

We estimate the average annual revenue (2008 dollars) for vessels harvesting shrimp using skimmer trawls, pusher-head trawls, or wing nets (butterfly trawls) as approximately $22,500 for Louisiana vessels, $21,400 for Alabama vessels, and $2,700 for North Carolina vessels. However, fishermen, including shrimpers, commonly participate in multiple fisheries, and these results may not include revenue from non-shrimp species. Comparable information for Mississippi vessels is not available because no shrimp landings from Mississippi vessels using this gear were recorded in the comparable time period (2006-2010). Although some Mississippi vessels are expected to be actively using this gear, we do not know whether these vessels are landing their shrimp harvests in other states, selling directly to the public and not through dealers, or engaging in some other practice that has resulted in the absence of recorded landings. Based on the average revenue estimates, all commercial fishing vessels expected to be directly affected by this proposed rule, if implemented, are for the purpose of this analysis considered to be small entities.

If the affected entities are required to pay for their TEDs, we expect this proposed rule will result in an estimated average first-year cost of $2,120 for fishermen in Louisiana, $1,000 for fishermen in Mississippi, $2,061 for fishermen in Alabama, and $1,133 for fishermen in North Carolina. These results are based on an estimated cost of $350 per TED, the use of two TEDs per vessel, an annual maintenance cost of $300 per vessel, and an estimated 4.97 percent reduction in shrimp harvest. Based on the average annual revenue estimates provided above, these first-year costs equal approximately 9.4 percent of average annual shrimp revenue for affected entities in Louisiana, 9.6 percent in Alabama, and 42.4 percent in North Carolina. The total average effect per entity would be reduced if these fishermen also operate in other fisheries, which we expect is the case for most entities. Total revenues from all species for the affected fishermen are not known. However, the estimated average annual net revenue across all Gulf states, including revenue from all species, for operations in the inshore shrimp sector, which includes the entities described here, is negative, indicating the average vessel is operating at a loss. As a result, any increased costs or reduced revenues are expected to compound these losses. Similar information is not available for North Carolina fishermen, but this analysis assumes the average net revenue for North Carolina fishermen is comparable to that of inshore shrimp fishermen in the Gulf of Mexico.

As previously discussed, a comparable analysis for entities in Mississippi cannot be completed because we lack appropriate revenue information. As a result, the estimated effect for entities in Mississippi simply reflects the cost of the TEDs. The cost associated with TED purchase, however, may be overstated, particularly for Mississippi vessels. The National Fish and Wildlife Foundation (NFWF) allocated funds received from oil recovery income as a result of the DWH oil spill event for Gulf of Mexico restoration efforts. In 2010, funding was made available to purchase and distribute TEDs for skimmer trawl vessels and, to date, an estimated 360 TEDs have been distributed to 180 Mississippi shrimp vessels. Therefore, we believe the majority of skimmer trawl vessels operating in Mississippi already possess TEDs.

Because a TED is a durable device, the cost of a new TED is not an annual expense. The estimated replacement cycle for a TED is at least three years, barring net damage and TED loss. In a year in which a new TED is not purchased, the effect of this rule would be limited to TED maintenance costs and reduced shrimp harvest associated with TED use. These costs then would be approximately $1,420 for Louisiana vessels, $1,361 for Alabama vessels, and $433 for North Carolina vessels. It may also be possible to reduce shrimp losses over time through changes in fishing practices or increased experience with TED use.

The cost of initial TED purchases would be reduced if special funding is available, similar to the NFWF funding in 2010 or a comparable project. This analysis does not assume that TEDs will be provided. If TEDs are provided, the initial and recurring expected effects of this proposed rule would be reduced to the costs of TED maintenance, replacement TEDs, and shrimp loss.

This proposed rule would not establish any new reporting, record-keeping, or other compliance requirements beyond the requirement to use a TED when using skimmer trawls, pusher-head trawls, and wing nets (butterfly trawls). TEDs are installed by the net dealer, so no special skills would be expected to be required of fishermen for TED installation. Some learning may be required for the maintenance and routine use of the TED. Use of TEDs, however, is common in the general shrimp fisheries and the skills required in their use are consistent with the skill set and capabilities of commercial shrimp fishermen in general. As a result, special professional skills would not be expected to be necessary.

We considered eight alternatives, including the proposed rule and the no-action alternative, to reduce incidental bycatch and mortality of sea turtles in the southeastern U.S. shrimp fisheries. The no-action alternative would not have changed any current management measures and was not selected because it would not to result in any reduction in the incidental bycatch and mortality of sea turtles.

Two other management alternatives also considered TED use instead of the current tow time authorization for varying portions of the skimmer trawl fleets. The remaining four alternatives considered different time/area closures for the shrimp fisheries.

The two alternatives that considered alternative tow time restrictions would have, alternatively, required TED use in lieu of tow time restrictions based on vessel length, or limited TED use either to vessels 30 feet and longer, or to those 20 feet and longer. Both alternatives would have affected fewer vessels (1,471 and 2,211 vessels, respectively) and resulted in lower adverse economic effects (by 40 percent and 9 percent, respectively) than the proposed rule. However, we did not select these alternatives because they would not sufficiently reduce the incidental bycatch and mortality of sea turtles in general, and would also incentivize an effort shift to smaller vessels, thereby reducing the net benefits of TED use by larger vessels.

The four alternatives that considered closures varied by geographic coverage, either the Texas-Louisiana or Louisiana-Mississippi state borders through the Alabama-Florida state border; or by duration, either March 1 through May 31 or April 1 through May 15. The expected economic effects of these alternatives would result from reduced shrimp harvests, and range from aggregates losses of approximately $50,000 to approximately $14 million. While three of these alternatives would likely result in lower adverse economic effects for affected entities than the proposed action, none of these alternatives was selected because the low fishing effort during the time periods considered means that the total reduction in the incidental bycatch and mortality of sea turtles would be insufficient to afford these species the necessary protection.

The Endangered Species Act provides the statutory basis for the rule.

Public hearings will be held at the following locations:

1. Morehead City—Crystal Coast Civic Center, 3505 Arendell Street, Morehead City, NC 28557.

2. Larose—Larose Regional Park and Civic Center, 307 East 5th Street, Larose, LA 70373.

3. Belle Chasse—Belle Chasse Community Center, 8398 Highway 23, Belle Chasse, LA 70037.

4. D'Iberville—L.H. “Red” Barnett Senior Center, 10450 Lamey Bridge Road, D'Iberville, MS 39540.

5. Bayou La Batre—Bayou La Batre Community Center, 12745 Padgett Switch Road, Bayou La Batre, AL 36509.

The public hearing dates are:

1. May 30, 2012, 2 p.m. to 4 p.m., Morehead City, NC.

2. June 4, 2012, 4 p.m. to 6 p.m., Larose, LA.

3. June 5, 2012, 4 p.m. to 6 p.m., Belle Chasse, LA.

4. June 6, 2012, 4 p.m. to 6 p.m., Biloxi, MS.

5. June 13, 2012, 2 p.m. to 4 p.m., Bayou La Batre, AL.

For the reasons set out in the preamble, 50 CFR part 223 is proposed to be amended as follows: