[Federal Register Volume 80, Number 193 (Tuesday, October 6, 2015)]
[Rules and Regulations]
[Pages 60468-60489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25270]



[[Page 60467]]

Vol. 80

Tuesday,

No. 193

October 6, 2015

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Black Pinesnake With 4(d) Rule; Final Rule

  Federal Register / Vol. 80, No. 193 / Tuesday, October 6, 2015 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2014-0046; 4500030113]
RIN 1018-BA03


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Black Pinesnake With 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened species status under the Endangered Species Act of 1973 
(Act), as amended, for the black pinesnake (Pituophis melanoleucus 
lodingi), a reptile subspecies from Alabama, Louisiana, and 
Mississippi. The effect of this rule is to add this subspecies to the 
List of Endangered and Threatened Wildlife. We are also adopting a rule 
under the authority of section 4(d) of the Act (a ``4(d) rule'') to 
provide for the conservation of the black pinesnake.

DATES: This rule is effective November 5, 2015.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and http://www.fws.gov/mississippiES/. Comments and 
materials we received, as well as supporting documentation we used in 
preparing this rule, are available for public inspection at http://www.regulations.gov. All of the comments, materials, and documentation 
that we considered in this rulemaking are available by appointment, 
during normal business hours at: U.S. Fish and Wildlife Service, 
Mississippi Ecological Services Field Office, 6578 Dogwood View 
Parkway, Jackson, MS 39213; by telephone at 601-965-4900; or by 
facsimile at 601-965-4340.

FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, U.S. 
Fish and Wildlife Service, Mississippi Ecological Services Field 
Office, 6578 Dogwood Parkway, Jackson, MS 39213; by telephone 601-965-
4900; or by facsimile 601-965-4340. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, a species may warrant 
protection through listing if we determine that it is endangered or 
threatened throughout all or a significant portion of its range. 
Listing a species as an endangered or threatened species can only be 
completed by issuing a rule.
    This rule lists the black pinesnake (Pituophis melanoleucus 
lodingi) as a threatened species. It includes provisions published 
under the authority of section 4(d) of the Act that are necessary and 
advisable to provide for the conservation of the black pinesnake.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the black pinesnake is 
threatened based on four of these five factors (Factors A, C, D, and 
E), specifically the past and continuing loss, degradation, and 
fragmentation of habitat in association with silviculture, 
urbanization, and fire suppression; road mortality; and the intentional 
killing of snakes by individuals.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our determination is based on scientifically 
sound data, assumptions, and analyses. We also considered all comments 
and information we received during two public comment periods.

Previous Federal Action

    Federal actions for the black pinesnake prior to publication of the 
proposed listing rule are outlined in that rule, which was published on 
October 7, 2014 (79 FR 60406). Publication of the proposed rule opened 
a 60-day comment period, which closed on December 8, 2014. On March 11, 
2015, we published a proposed critical habitat designation for the 
black pinesnake (80 FR 12846) and invited the public to comment on the 
critical habitat proposal; the entire October 7, 2014, proposed listing 
rule; and the draft economic analysis of the proposed critical habitat 
designation. This second 60-day comment period ended on May 11, 2015.
    We will finalize the designation of critical habitat for the black 
pinesnake at a later date.

Background

Species Information

Species Description and Taxonomy

    Pinesnakes (genus Pituophis) are large, non-venomous, oviparous 
(egg-laying) constricting snakes with keeled scales and 
disproportionately small heads (Conant and Collins 1991, pp. 201-202). 
Their snouts are pointed. Black pinesnakes are distinguished from other 
pinesnakes by being dark brown to black both on the upper and lower 
surfaces of their bodies. There is considerable individual variation in 
adult coloration (Vandeventer and Young 1989, p. 34), and some adults 
have russet-brown snouts. They may also have white scales on their 
throat and ventral surface (Conant and Collins 1991, p. 203). In 
addition, there may also be a vague pattern of blotches on the end of 
the body approaching the tail. Adult black pinesnakes range from 48 to 
76 inches (in) (122 to 193 centimeters (cm)) long (Conant and Collins 
1991, p. 203; Mount 1975, p. 226). Young black pinesnakes often have a 
blotched pattern, typical of other pinesnakes, which darkens with age. 
The subspecies' defensive posture when disturbed is particularly 
interesting; when threatened, it throws itself into a coil, vibrates 
its tail rapidly, strikes repeatedly, and utters a series of loud 
hisses (Ernest and Barbour 1989, p. 102).
    Pinesnakes (Pituophis melanoleucus) are members of the Class 
Reptilia, Order Squamata, Suborder Serpentes, and Family Colubridae. 
There are three recognized subspecies of P. melanoleucus distributed 
across the eastern United States (Crother 2012, p. 66; Rodriguez-Robles 
and De Jesus-Escobar 2000, p. 35): The northern pinesnake (P. m. 
melanoleucus); black pinesnake (P. m. lodingi); and Florida pinesnake 
(P. m. mugitus). The black pinesnake was originally described by 
Blanchard (1924, pp. 531-532), and is geographically isolated from all 
other pinesnakes. However, there is evidence that the black pinesnake 
was in contact with other pinesnakes in the past. A form intermediate 
between P. m. lodingi and P. m. mugitus occurs in Baldwin and Escambia 
Counties, Alabama, and Escambia County, Florida, and may display 
morphological characteristics of both subspecies (Conant 1956, pp. 10-
11). These snakes are separated from populations of the black pinesnake 
by the extensive Tensas-Mobile River Delta and the Alabama River, and 
it is unlikely that there is currently gene flow between pinesnakes 
across the Delta (Duran 1998a, p. 13; Hart 2002, p.

[[Page 60469]]

23). A study on the genetic structure of the three subspecies of P. 
melanoleucus (Getz et al. 2012, p. 2) showed evidence of mixed 
ancestry, and supported the current subspecies designations and the 
determination that all three are genetically distinct groups. Evidence 
suggests a possible historical intergradation between P. m. lodingi and 
P. ruthveni (Louisiana pinesnake), but their current ranges are no 
longer in contact and intergradation does not presently occur (Crain 
and Cliburn 1971, p. 496).
Habitat
    Black pinesnakes are endemic to the longleaf pine ecosystem that 
once covered the southeastern United States. Optimal habitat for these 
snakes consists of sandy, well-drained soils with an open-canopied 
overstory of longleaf pine, a reduced shrub layer, and a dense 
herbaceous ground cover (Duran 1998a, p. 2). Duran (1998b, pp. 1-32) 
conducted a radio-telemetry study of the black pinesnake that provided 
data on habitat use. Snakes in this study were usually located on well-
drained, sandy-loam soils on hilltops, on ridges, and toward the tops 
of slopes in areas dominated by longleaf pine. With other habitat types 
readily available on the landscape, we can infer that these upland 
habitats were preferred by black pinesnakes. They were rarely found in 
riparian areas, hardwood forests, or closed canopy conditions. From 
radio-telemetry studies, black pinesnakes were located below ground 53 
to 70 percent of the time (Duran 1998a, p. 12; Yager et al. 2005, p. 
27; Baxley and Qualls 2009, p. 288). These locations were usually in 
the trunks or root channels of rotting pine stumps.
    During two additional radiotelemetry studies, individual pinesnakes 
were observed in riparian areas, hardwood forests, and pine plantations 
periodically, but the majority of their time was still spent in intact 
upland longleaf pine habitat. While they used multiple habitat types 
periodically, they repeatedly returned to core areas in the longleaf 
pine uplands and used the same pine stump and associated rotted-out 
root system from year to year, indicating considerable site fidelity 
(Yager, et al. 2006, pp. 34-36; Baxley 2007, p. 40). Several radio-
tracked juvenile snakes were observed using mole or other small mammal 
burrows rather than the bigger stump holes used by adult snakes (Lyman 
et al. 2007, pp. 39-41).
    Pinesnakes have shown some seasonal movement trends of emerging 
from overwintering sites in February, moving to an active area from 
March until September, and then moving back to their overwintering 
areas (Yager et al. 2006, pp. 34-36). The various areas utilized 
throughout the year may not have significantly different habitat 
characteristics, but these movement patterns illustrate that black 
pinesnakes may need access to larger, unfragmented tracts of habitat to 
accommodate fairly large home ranges while minimizing interactions with 
humans.
Life History
    Black pinesnakes are active during the day but only rarely at 
night. As evidenced by their pointed snout and enlarged rostral scale 
(the scale at the tip of their snout), they are accomplished burrowers 
capable of tunneling in loose soil, potentially for digging nests or 
excavating rodents for food (Ernst and Barbour 1989, pp. 100-101). 
Black pinesnakes are known to consume a variety of food, including 
nestling rabbits (Sylvilagus aquaticus), bobwhite quail (Colinus 
virginianus) and their eggs, and eastern kingbirds (Tyrannus tyrannus) 
(Vandeventer and Young 1989, p. 34; Yager et al. 2005, p. 28); however, 
rodents represent the most common type of prey. The majority of 
documented prey items are hispid cotton rats (Sigmodon hispidus), 
various species of mice (Peromyscus spp.), and, to a lesser extent, 
eastern fox squirrels (Sciurus niger) (Rudolph et al. 2002, p. 59; 
Yager et al. 2005, p. 28). During field studies of black pinesnakes in 
Mississippi, hispid cotton rats and cotton mice (Peromyscus gossypinus) 
were the most frequently trapped small mammals within black pinesnake 
home ranges (Duran and Givens 2001, p. 4; Baxley 2007, p. 29). These 
results suggest that these two species of mammals represent essential 
components of the snake's diet (Duran and Givens 2001, p. 4).
    Duran and Givens (2001, p. 4) estimated the average size of 
individual black pinesnake home ranges (Minimum Convex Polygons (MCPs)) 
at Camp Shelby, Mississippi, to be 117.4 acres (ac) (47.5 hectares 
(ha)) using data obtained during their radio-telemetry study. A more 
recent study conducted at Camp Shelby, a National Guard training 
facility operating under a special use permit on the De Soto National 
Forest (NF) in Forrest, George, and Perry Counties, Mississippi, 
provided home range estimates from 135 to 385 ac (55 to 156 ha) (Lee 
2014a, p. 1). Additional studies from the De Soto NF and other areas of 
Mississippi have documented somewhat higher MCP home range estimates, 
from 225 to 979 ac (91 to 396 ha) (Baxley and Qualls 2009, p. 287). The 
smaller home range sizes from Camp Shelby may be a reflection of the 
higher habitat quality at the site (Zappalorti in litt. 2015), as the 
snakes may not have to travel great distances to meet their ecological 
needs. A modeling study of movement patterns in bullsnakes (Pituophis 
catenifer sayi) revealed that home range sizes increased as a function 
of the amount of avoided habitat, such as agricultural fields (Kapfer 
et al. 2010, p. 15). As snakes are forced to increase the search radius 
to locate preferred habitat, their home range invariably increases.
    The dynamic nature of individual movement patterns supports the 
premise that black pinesnake habitat should be maintained in large 
unfragmented parcels to sustain survival of a population. In the late 
1980s, a gopher tortoise preserve of approximately 2,000 ac (809 ha) 
was created at Camp Shelby. This preserve, which has limited habitat 
fragmentation and has been specifically managed with prescribed burning 
and habitat restoration to support the recovery of the gopher tortoise, 
is centrally located within a much larger managed area (over 100,000 ac 
(40,469 ha)) that provides habitat for one of the largest known 
populations of black pinesnakes in the subspecies' range (Lee 2014a, p. 
1).
    No population and habitat viability analyses have been conducted 
for the black pinesnake due primarily to a lack of essential life-
history and demographic data, such as estimates of growth and 
reproductive rates, as is the case for many snake species (Dorcas and 
Willson 2009, p. 36; Willson et al. 2011, pp. 42-43). However, radio-
tracking studies have shown that a reserve area should include an 
unconstrained (unfragmented) activity area large enough to accommodate 
the long-distance movements that have been reported for the subspecies 
(Baxley and Qualls 2009, pp. 287-288). As with many snake species, 
fragmentation by roads, urbanization, or incompatible habitat 
conversion continues to be a major threat affecting the black pinesnake 
(see discussion below under Factor E: Other Natural or Manmade Factors 
Affecting Its Continued Existence).
    Very little information on the black pinesnake's breeding and egg-
laying is available from the wild. Lyman et al. (2007, p. 39) described 
the time frame of mid-May through mid-June as the period when black 
pinesnakes breed at Camp Shelby, and mating activities may take place 
in or at the entrance to armadillo burrows. However, Lee (2007, p. 93) 
described copulatory behavior in a pair of black pinesnakes in late

[[Page 60470]]

September. Based on dates when hatchling black pinesnakes have been 
captured, the potential nesting and egg deposition period of gravid 
females extends from the last week in June to the last week of August 
(Lyman et al. 2009, p. 42). In 2009, a natural nest with a clutch of 
six recently hatched black pinesnake eggs was found at Camp Shelby (Lee 
et al. 2011, p. 301) at the end of a juvenile gopher tortoise burrow. 
As there is only one documented natural black pinesnake nest, it is 
unknown whether the subspecies exhibits nest site fidelity; however, 
nest site fidelity has been described for other Pituophis species. 
Burger and Zappalorti (1992, pp. 333-335) conducted an 11-year study of 
nest site fidelity of northern pinesnakes in New Jersey, and documented 
the exact same nest site being used for 11 years in a row, evidence of 
old egg shells in 73 percent of new nests, and recapture of 42 percent 
of female snakes at prior nesting sites. The authors suggest that 
females returning to a familiar site should have greater knowledge of 
available resources, basking sites, refugia, and predator pressures; 
therefore they would have the potential for higher reproductive success 
compared with having to find a new nest site (Burger and Zappalorti 
1992, pp. 334-335). If black pinesnakes show similar site fidelity, it 
follows that they too might have higher reproductive success if their 
nesting sites were to remain undisturbed.
    Specific information about underground refugia of the black 
pinesnake was documented during a study conducted by Rudolph et al. 
(2007, p. 560), which involved excavating five sites used by the 
subspecies for significant periods of time from early December through 
late March. The pinesnakes occurred singly at shallow depths (mean of 
9.8 in (25 cm); maximum of 13.8 in (35 cm)) in chambers formed by the 
decay and burning of pine stumps and roots (Rudolph et al. 2007, p. 
560). The refugia were not excavated by the snakes beyond minimal 
enlargement of the preexisting chambers. These sites are not considered 
true hibernacula because black pinesnakes move above ground on warm 
days throughout all months of the year (Rudolph et al. 2007, p. 561; 
Baxley 2007, pp. 39-40). Means (2005, p. 76, and references therein) 
suggested that longleaf pine is likely to be more important than other 
southern pine species to animals using stumpholes, because longleaf 
pine has a more resinous heartwood, deeper taproot, and lateral roots 
spreading out 50 feet (ft) (15.2 meters (m)) or more.
    Longevity of wild black pinesnakes is not well documented, but can 
be at least 11 years, based on recapture data from Camp Shelby (Lee 
2014b, pers. comm.). The longevity record for a captive male black 
pinesnake is 14 years, 2 months (Slavens and Slavens 1999, p. 1). 
Recapture and growth data from black pinesnakes on Camp Shelby indicate 
that they may not reach sexual maturity until their 4th or possibly 5th 
year (Yager et al. 2006, p. 34).
    Potential predators of black pinesnakes include red-tailed hawks 
(Buteo jamaicensis), raccoons (Procyon lotor), skunks (Mephitis 
mephitis), red foxes (Vulpes vulpes), feral cats (Felis catus), and 
domestic dogs (Canis familiaris) (Ernst and Ernst 2003, p. 284; Yager 
et al. 2006, p. 34; Lyman et al. 2007, p. 39).
Historical/Current Distribution
    There are historical records for the black pinesnake from one 
parish in Louisiana (Washington Parish), 14 counties in Mississippi 
(Forrest, George, Greene, Harrison, Jackson, Jones, Lamar, Lauderdale, 
Marion, Pearl River, Perry, Stone, Walthall, and Wayne Counties), and 3 
counties in Alabama west of the Mobile River Delta (Clarke, Mobile, and 
Washington Counties). Historically, populations likely occurred in all 
of these contiguous counties; however, current records do not support 
the distribution of black pinesnakes across this entire area. Recently, 
a black pinesnake was observed in a new county, Lawrence County, 
Mississippi, where the subspecies had not previously been documented 
(Lee 2014b, p. 1). However, is not known whether this snake represents 
a new extant population.
    Duran (1998a, p. 9) and Duran and Givens (2001, p. 24) concluded 
that black pinesnakes have likely been extirpated from Louisiana and 
from two counties (Lauderdale and Walthall) in Mississippi. In these 
two studies, all historical and current records were collected; land 
managers from private, State, and Federal agencies with local knowledge 
of the subspecies were interviewed; and habitat of all historical 
records was visited and assessed. As black pinesnakes have not been 
reported west of the Pearl River in either Mississippi or Louisiana in 
over 30 years, and since there are no recent (post-1979) records from 
Pearl River County (Mississippi), we believe them to likely be 
extirpated from that county as well.
    In general, pinesnakes are particularly difficult to survey given 
their tendency to remain below ground most of the time. However, a 
review of records, interviews, and status reports, coupled with a 
Geographic Information System (GIS) analysis of current suitable 
habitat, indicated that black pinesnakes likely remain in all 
historical counties in Alabama and in 11 out of 14 historical counties 
in Mississippi (Forrest, George, Greene, Harrison, Jackson, Jones, 
Lamar, Marion, Perry, Stone, and Wayne Counties). Black pinesnake 
populations in many of the occupied counties in Mississippi occur in 
the De Soto NF. Much of the habitat outside of De Soto NF has become 
highly fragmented, and populations on these lands appear to be small 
and isolated on islands of suitable habitat (Duran 1998a, p. 17; 
Barbour 2009, pp. 6-13).
Population Estimates and Status
    Duran and Givens (2001, pp. 1-35) reported the results of a habitat 
assessment of all black pinesnake records (156) known at the time of 
their study. Habitat suitability of the sites was based on how the 
habitat compared to that selected by black pinesnakes in a previously 
completed telemetry study of a population occupying what was considered 
high-quality habitat (Duran 1998b, pp. 1-44). Black pinesnake records 
were joined using a contiguous suitable habitat model (combining areas 
of suitable habitat with relatively unrestricted gene flow) to create 
``population segments'' (defined as ``that portion of the population 
located in a contiguous area of suitable habitat throughout which gene 
flow is relatively unrestricted'') from the two-dimensional point data. 
These population segments were then assessed using a combination of a 
habitat suitability rating and data on how recently and/or frequently 
black pinesnakes had been recorded at the site. By examining historical 
population segments, Duran and Givens (2001, p. 10) determined that 22 
of the 36 (61 percent) population segments known at the time of their 
study were either extirpated (subspecies no longer present), or were in 
serious jeopardy of extirpation. During the development of this listing 
rule, we used GIS to reassess the habitat suitability of the 14 
population segments not determined to be in serious jeopardy of 
extirpation by Duran and Givens (2001, p. 10). Our estimate of the 
number of populations was derived by overlaying habitat from a current 
GIS analysis with the locality record data (post-1990) from species/
subspecies experts, Natural Heritage Programs, State wildlife agencies, 
and the site assessments of Duran and Givens (2001, pp. 1-35) and 
Barbour

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(2009, pp. 1-36). We used locality records back to 1990, because this 
date coincides with that chosen by Duran and Givens (2001, pp. 1-35) 
and Barbour (2009, pp. 1-36) in their comprehensive black pinesnake 
habitat assessments. Using the movement and home range data provided by 
black pinesnake researchers (Duran 1998b, pp. 15-19; Yager et al. 2005, 
pp. 27-28; Baxley and Qualls 2009, pp. 287-288), a population was 
determined to be distinct if it was separated from other localities by 
more than 1.3 miles (mi.) (2.1 kilometers (km)). Using our recent 
assessment, we estimate that 11 of the 14 populations of black 
pinesnakes remain extant today. Five of these 11 populations occur in 
Alabama and 6 in Mississippi. However, current data are insufficient to 
make a determination of the number of individuals that comprise each 
remaining population.
    Our current GIS analysis indicates that 3 of the 11 remaining black 
pinesnake populations, all located in Alabama and lacking recent 
records, are not likely to persist long term due to: Presence on, or 
proximity to, highly fragmented habitat; lack of protection and habitat 
management for the site; or both. The majority of the known black 
pinesnake records, and much of the best remaining habitat, occurs 
within the two ranger districts that make up the De Soto NF in 
Mississippi. These lands represent a small fraction of the former 
longleaf pine ecosystem that was present in Louisiana, Mississippi, and 
Alabama, and was historically occupied by the subspecies. At this time, 
we believe the six populations in Mississippi (five on the De Soto NF 
and one in Marion County) and two sites in Alabama (in Clarke County) 
are the only ones considered likely to persist long term because of 
their presence on relatively unfragmented forest and protection or 
management afforded to the habitat or subspecies.

Summary of Comments and Recommendations

    In the proposed rule published on October 7, 2014 (79 FR 60406), we 
requested that all interested parties submit written comments on the 
proposal by December 8, 2014. We reopened the comment period on the 
listing proposal on March 11, 2015 (80 FR 12846) with our publication 
of a proposed critical habitat designation for the subspecies. This 
second 60-day comment period ended on May 11, 2015. During both comment 
periods, we also contacted appropriate Federal and State agencies, 
scientific experts and organizations, and other interested parties and 
invited them to comment on the proposal. Newspaper notices inviting 
general public comment were published in the Mobile Press Register and 
Hattiesburg American on October 12, 2014, and again on March 15, 2015. 
We also presented several webinars on the proposed listing and critical 
habitat rules, and invited all stakeholders, media, and congressional 
representatives to participate and ask any questions. The webinar 
information was posted on our Web site along with copies of the 
proposed listing rule, press release, and a question/answer document. 
We did not receive any requests for a public hearing within the 
designated timeframe. During the two comment periods for the proposed 
rule, we received nearly 300 comments addressing the proposed listing 
and critical habitat rules. In this final rule, we address only the 
comments regarding the proposed listing and the associated rule under 
section 4(d) of the Act (16 U.S.C. 1531 et seq.). Comments specific to 
the proposed critical habitat designation (80 FR 12846) for this 
subspecies will be addressed in the final critical habitat 
determination at a later date. All relevant substantive information 
provided during comment periods has either been incorporated directly 
into this final determination or is addressed below.

Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from six knowledgeable 
individuals with scientific expertise that included familiarity with 
the black pinesnake and its habitat, biological needs, and threats, as 
well as those with experience in studying other pinesnake species. We 
received responses from all of the peer reviewers.
    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding the listing of black 
pinesnake. The peer reviewers generally concurred with our methods and 
conclusions, and provided additional information, clarifications, and 
suggestions to improve this final rule. Four of the peer reviewers 
specifically expressed their support for the subspecies' listing as a 
threatened species; a fifth peer reviewer questioned our 
characterization that the rate of decline had moderated for this 
subspecies due to conservation actions, and suggested the black 
pinesnake might actually qualify as endangered. The sixth peer reviewer 
limited her comments to the critical habitat proposal and did not 
specifically address the proposed listing rule. Several peer reviewers 
noted that information was limited on some life-history attributes but 
stated that, based on the best available information, the Service had 
presented a compelling case for listing as threatened. Four of the peer 
reviewers stressed the importance of stump holes and associated root 
systems to the subspecies and most noted the importance of conserving 
outlying populations to support conservation genetics of the 
subspecies. Substantive peer reviewer comments are addressed in the 
following summaries and incorporated into the final rule as 
appropriate.
    (1) Comment: Peer reviewers provided additional information and 
suggestions for clarifying and improving the accuracy of the 
information in the ``Habitat,'' ``Life History,'' ``Historical/Current 
Distribution,'' Summary of Factors Affecting the Species, and Available 
Conservation Measures sections of the preamble of the proposed rule.
    Our Response: We appreciate these corrections and suggestions, and 
have made changes to this final rule to reflect the peer reviewers' 
input.
    (2) Comment: Two peer reviewers stated that our characterization of 
``open canopy'' as <=70 percent canopy coverage in our discussion of 
target suitable black pinesnake habitat, under the ``Provisions of the 
Proposed Special Rule'' section, was not appropriate. They stated that 
studies have shown that pinesnakes more frequently utilize areas with 
<50 percent canopy coverage.
    Our Response: There appears to be some variability in the 
literature as to what percentage of canopy closure constitutes an open 
canopy. Therefore, we have removed any reference of a specific value 
for canopy coverage as optimal habitat for the black pinesnake in this 
final rule. We have focused instead on the presence of an abundant 
herbaceous groundcover, which is a component of optimal habitat for 
this subspecies and is provided for in an appropriately open-canopied 
forest.
    (3) Comment: One peer reviewer stated that the increasing use of 
erosion control blankets (ECBs) containing polypropylene mesh poses a 
potential threat to black pinesnakes. ECBs, which are often used for 
erosion control on pipeline construction projects, but may also be used 
for bird exclusion, have been documented to entangle many species of 
snakes, causing lacerations and mortality. They often take years to 
decompose, presenting a long-term entanglement hazard, even when 
discarded.
    Our Response: We appreciate this new information, and have made 
changes to this final rule to reflect the

[[Page 60472]]

peer reviewer's input (see ``Factor E: Other Natural or Manmade Factors 
Affecting Its Continued Existence'' in the Summary of Factors Affecting 
the Species section, below).
    (4) Comment: One peer reviewer and several public commenters 
questioned whether our determination of ``threatened'' was appropriate, 
instead of ``endangered.'' While the public commenters provided no 
justification for their statements, the peer reviewer suggested there 
are no data that indicate rates of population decline have moderated; 
therefore it is possible that the decline has accelerated. The peer 
reviewer mentioned that there have been minimal conservation 
accomplishments concerning the black pinesnake throughout its 
intermittent status as a candidate species over the last 30 years.
    Our Response: The Act defines an endangered species as any species 
that is ``in danger of extinction throughout all or a significant 
portion of its range'' and a threatened species as any species ``that 
is likely to become endangered throughout all or a significant portion 
of its range within the foreseeable future.'' The determination to list 
the black pinesnake as threatened was based on the best available 
scientific and commercial data on its status, the existing and 
potential threats to the subspecies, and ongoing conservation actions. 
While it may be difficult to determine the ultimate success of these 
conservation actions, we know that discussions between the Service and 
our public lands partners, in particular, have resulted in new language 
within their formal management plans to protect and enhance black 
pinesnake habitat. For example, the Mississippi Army National Guard 
(MSARNG) has amended its integrated natural resources management plan 
(INRMP) to provide for the protection and management of the black 
pinesnake (see ``Conservation Efforts to Reduce Habitat Destruction, 
Modification, or Curtailment of Its Range'' under Factor A in the 
Summary of Factors Affecting the Species section, below).
    We find that endangered status is not appropriate for the black 
pinesnake because, while we found the threats to the subspecies to be 
significant and rangewide, we did not find that the threats currently 
place the subspecies in danger of extinction throughout all or a 
significant portion of its range. Although there is a general decline 
in the overall range of the subspecies and its available habitat, we 
believe that the rate of decline has slowed in recent years due to 
restoration efforts, and range contraction is not severe enough to 
indicate imminent extinction. Therefore, we find that the black 
pinesnake meets the definition of a threatened species based on the 
immediacy, severity, and scope of the threats described above (see 
Determination section, below).
    (5) Comment: Two peer reviewers and several public commenters 
questioned our determination that illegal collection from the wild was 
not a significant threat to the black pinesnake. One peer reviewer 
suggested that people in the pet trade may value wild-caught 
individuals with novel genetics, while public commenters postulated 
that the listing of the pinesnake may make it more difficult for 
enthusiasts and hobbyists to purchase individuals, therefore snakes 
from wild populations may be more vulnerable to collection. 
Additionally, a peer reviewer suggested that illegal collection would 
have a drastic impact on those populations that may have only a few 
individuals.
    Our Response: In this final listing rule, we continue to rely upon 
the best scientific and commercial information available, which in this 
case includes correspondence with individuals who have experience with 
the history of the pinesnake pet trade in the area (see ``Factor B: 
Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes'' in the Summary of Factors Affecting the Species 
section, below). Those sources maintained that the need for collection 
of wild specimens is thought to have declined dramatically due to the 
pet trade being currently saturated with captive-bred black pinesnakes. 
There is no information available to suggest that illegal collection 
will increase once the subspecies is listed (and no new information to 
support this was received during the comment periods). Since the black 
pinesnake is fossorial (and thus difficult to locate), and does not 
overwinter in communal den sites, we believe this potential threat to 
be minor.
    (6) Comment: Two peer reviewers and a number of public commenters 
stated that using locality data from 1990 as support for presence of 
extant populations may not reflect the current status of black 
pinesnakes and the subspecies may have since disappeared from these 
sites. On the other hand, a third peer reviewer stated that the lack of 
records for several decades in an area is not sufficient evidence to 
support that black pinesnakes have been extirpated from that area if 
some suitable habitat still exists.
    Our Response: As we discussed in ``Population Estimates and 
Status'' in the Background section (above), we used data dated back to 
1990, which is consistent with the date used by black pinesnake 
researchers to represent occupied localities in their comprehensive 
habitat assessments of black pinesnake localities. These records and 
the researchers' reports represent the best scientific data available 
at the time of listing. We conducted an updated GIS habitat analysis of 
the areas containing the post-1990 records, and if we found that 
sufficient forested habitat was still present, we determined that there 
was a reasonable likelihood that black pinesnake populations may still 
occur in those areas. If suitable habitat had disappeared in proximity 
to the record, we made the assumption that although a few individual 
snakes may still be present, the area likely could no longer support a 
population capable of persisting long term.
    (7) Comment: Three peer reviewers and several other commenters 
questioned our discussion and assessment relating to the viability of 
the black pinesnake populations. Two peer reviewers noted we needed to 
supply numerical values to demonstrate both population viability and 
minimum reserve area.
    Our Response: We do not currently have data (numerical values) on 
what constitutes a viable population for the black pinesnake and, 
therefore, have removed any discussion on viability of populations from 
this final listing rule. As stated in the ``Population Estimates and 
Status'' section under the Background section, above, we determined 
that 3 of the 11 currently known populations were not likely to persist 
in the long term due to their location on fragmented habitat and the 
lack of any protection or management in place. Viability, particularly 
with respect to minimum reserve area (minimal acreage necessary to 
support a viable population), will be discussed in our final critical 
habitat designation.

Federal Agency Comments

    (8) Comment: One Federal agency and many public commenters 
disagreed with our assessment of the current decline of the longleaf 
pine ecosystem in the Southeast. These commenters also questioned our 
statement that increases in longleaf pine forests through restoration 
efforts in the Southeast do not align with the range of the black 
pinesnake.
    Our Response: See our discussion of longleaf pine habitat under 
Factor A: The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range. Although there has been an 
extensive effort to restore longleaf pine in the Southeast, the

[[Page 60473]]

footprint of the longleaf pine ecosystem across its historical range 
continues to contract, with considerable losses being attributed to the 
conversion to loblolly pine (Oswalt et al. 2015, p. 504). Increases in 
longleaf pine acreage from restoration efforts do not overlap 
completely with the range of the black pinesnake (Ware 2014, pers. 
comm.). Recent outlooks for the southern Gulf region (which includes 
the range of the black pinesnake) still predict large percentage losses 
in longleaf pine distribution; in fact, Clarke County, Alabama, and 
several Mississippi counties occupied by the black pinesnake are 
predicted to have some of the highest percentages of longleaf pine loss 
in the Southeast (Klepzig et al. 2014, p. 53).
    (9) Comment: One Federal agency and many public commenters 
disagreed that urbanization is still a contributor to habitat loss 
within the range of the black pinesnake and expressed concern with our 
forecast on the continued loss of forest land to urbanization over the 
next 50 years. Commenters stated that our forestry forecast was not 
adjusted to account for the recent economic collapse and subsequent 
changes in U.S. timber markets and forecasts.
    Our Response: We recognize that not all areas within the range of 
the black pinesnake are forecast to have the same predicted levels of 
population growth in the next few decades, and some rural areas may 
experience population declines. However, we also recognize that many 
counties within the black pinesnake's range are still forecast to 
experience increases in urban land use, especially in areas near 
Mobile, Alabama, that have historically seen drastic habitat loss. We 
used the Southern Forest Futures Project to develop information in this 
rule regarding factors that are likely to result in forest changes 
within the range of the black pinesnake; this analysis covered a number 
of different scenarios of future population/income growth and timber 
prices and baseline tree planting rates (Klepzig et al. 2014, pg. vi). 
In all future scenarios, the southern Gulf region (which includes the 
range of the black pinesnake), as well as all the other southern U.S. 
subregions, exhibited a strong growth in population (Klepzig et al. 
2014, pg. 20). See our discussion of longleaf pine habitat under Factor 
A: The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range.
    (10) Comment: One Federal agency and numerous commenters disagreed 
that clearcut harvesting (clearcutting) constituted a management 
activity that destroys black pinesnake habitat. Some public commenters 
further elaborated that it is the activities occurring prior to the 
clearcut, or the managed condition after the clearcut, which are the 
potential threats to habitat. Many public commenters recommended that 
clearcutting be exempted as an intermediate treatment under the 4(d) 
rule.
    Our Response: We recognize that while some clearcut harvesting may 
have a negative impact on black pinesnake habitat, at other times it is 
a necessary management tool to restore a forest to a condition suitable 
for pinesnakes and other native wildlife. For instance, clearcutting 
off-site pine species prior to afforestation or reforestation with 
longleaf pine and clearcutting with longleaf reserves to promote 
natural regeneration can both be very appropriate for creating and 
maintaining suitable black pinesnake habitat. Therefore, we removed the 
specific activity ``clearcutting'' from the list of activities which 
could potentially result in a violation of Section 9 of the Act. The 
4(d) rule identifies activities causing significant subsurface 
disturbance or the conversion of the native longleaf pine forest to 
another forest cover type (or agricultural/urban uses) as the specific 
activities potentially causing take and threatening the subspecies.
    (11) Comment: Two Federal agencies, one State agency, and numerous 
public commenters stated that more data and information were needed 
before proceeding with a federal listing of the black pinesnake. 
Commenters noted the lack of demographic data, life-history studies, 
and current rangewide surveys and population estimates as critical 
information needed to assess the subspecies' status and population 
trends. Several others noted that population estimates should be 
considered a minimum because pinesnakes are difficult to locate given 
their tendency to remain below ground most of the time, and because 
most black pinesnake records were the result of incidental observations 
in the course of other activities or biased based on number of 
observers frequenting the area.
    Our Response: It is often the case that data are limited for rare 
species, and we acknowledge that it would be useful to have more 
information on the black pinesnake. However, as required by the Act, we 
base our determination on the best available scientific and commercial 
information at the time of our rulemaking. Trend information on 
population levels and habitat loss/availability or population/habitat 
indices often represent the best available information upon which to 
base listing actions. In arriving at our determination that the black 
pinesnake meets the definition of ``threatened'' under the Act, we note 
our conclusion is not based on estimates of population size or strictly 
on observational data, but on the reductions in range and numbers of 
populations due to past threats, and the negative impact of ongoing 
threats to those few populations that remain. Observational data 
(records) were only part of the analysis of population trends, as we 
evaluated habitat suitability through GIS as part of a probability of 
occurrence determination (please see our response to Comment 6, above). 
The Service determined that the available suitable habitat has 
diminished to the point that many historical populations have been 
severely reduced and gene flow between surviving populations has been 
restricted to the point of preventing the natural recovery of the 
subspecies.
    (12) Comment: One Federal agency expressed concern over our 
statement that activities causing ``ground disturbance'' could 
potentially result in a violation of take under section 9 of the Act 
and thereby impact military training or habitat restoration on the Camp 
Shelby Joint Forces Training Center (Camp Shelby) in Mississippi.
    Our Response: Following a review of the comments and our revision 
of the 4(d) rule, we have clarified the list of potential section 9 
violations (see Available Conservation Measures, below). We 
specifically focused on those activities that may impact the black 
pinesnake refugia (stump holes), the most important habitat feature for 
the subspecies, in our development of the list of potential section 9 
violations. Therefore, we have replaced ``activities causing ground 
disturbance'' with a more focused statement of those ``activities 
causing significant subsurface disturbance.'' We do not believe that 
normal military training operations will cause significant subsurface 
disturbance in the forested areas occupied by black pinesnakes, as 
artillery firing occurs on ranges that are maintained as mowed open 
fields, and troop- and vehicle-maneuvering activities do not cause 
significant disturbance that would destroy underground refugia. Habitat 
restoration and maintenance activities are covered under Camp Shelby's 
INRMP, which includes specific conservation measures to benefit black 
pinesnakes, including protection and maintenance of pine stumps (MSARNG 
2014, p. 93). Military training operations on Camp Shelby have been 
compatible with protection measures for the burrows of the gopher

[[Page 60474]]

tortoise (Gopherus polyphemus), which has been federally listed for 28 
years. We believe these operations will be compatible with protecting 
black pinesnakes and their habitat as well. As we have done with the 
gopher tortoise, we will work with the Department of Defense (DoD) and 
Camp Shelby to ensure their military mission can be accomplished and 
habitat restoration efforts can continue.

Comments From States

    Section 4(b)(5)(A)(ii) of the Act requires the Service to give 
actual notice of any proposed listing regulation to the appropriate 
agency of each State in which the species is believed to occur, and 
invite each such agency to comment on the proposed regulation. We 
received comments from the Alabama Department of Conservation and 
Natural Resources, Wildlife and Freshwater Fisheries Division (ADCNR); 
the Mississippi Department of Wildlife, Fisheries and Parks (MDWFP); 
the Secretary of State for Mississippi; and the Louisiana Department of 
Wildlife and Fisheries (LDWF). The ADCNR provided an initial comment 
supporting the listing of the black pinesnake as threatened, which was 
followed later by a letter rescinding its support for the threatened 
listing and citing its belief that additional information was needed 
prior to making a listing decision. The MDWFP noted that it did not 
support any regulation or listing that would restrict or prohibit 
private landowners from managing their property for their objectives, 
specifically timber management. These agencies in Alabama and 
Mississippi also expressed concern that the 4(d) rule as proposed was 
too narrow in scope and would negatively impact private landowners 
managing timber. The LDWF initially commented that it did not consider 
the black pinesnake extirpated in Louisiana, based on a 2005 reported 
observation; however, they later retracted this statement. Based on 
further analysis, LDWF determined that the 2005 report was unverifiable 
and scientifically invalid; therefore, it failed to meet the criteria 
as an element of occurrence in the Louisiana Natural Heritage Program 
database. LDWF also stated that it supported the black pinesnake's 
proposed listing as threatened with a 4(d) rule to exempt beneficial 
management practices and noted that Louisiana is continuing to lose 
suitable upland pine habitat due to urban development. Specific issues 
raised by the States are addressed below.
    (13) Comment: ADCNR and many public commenters stated that the 
proposed 4(d) rule was overly prescriptive and recommended a 4(d) rule 
similar to the Louisiana black bear (Ursus americanus luteolus) 4(d) 
rule, which exempts take occurring during all normal forestry 
activities that do not negatively impact den trees (see 50 CFR 
17.40(i)). ADCNR also stated that it would support a 4(d) rule that 
provides for open canopy conditions; abundant ground cover; and refugia 
habitat such as stumps, snags, and woody debris.
    Our Response: We appreciate the input from ADCNR and other 
commenters, and have made adjustments to the 4(d) rule to exempt, among 
other things, all forest management activities that maintain lands in a 
forested condition, except those activities causing significant 
subsurface disturbance or converting longleaf pine forests to other 
forest cover types. This change is in recognition of the naturally 
decayed or burned-out pine stump holes as an essential habitat feature 
for the black pinesnake, much like the Louisiana black bear 4(d) rule 
was developed to protect an essential habitat feature for that species. 
Not all suggested changes were incorporated because not all activities 
are consistent with a 4(d) rule that is ``necessary and advisable for 
the conservation of the species.'' We believe this revised 4(d) rule 
for the black pinesnake focuses on protecting those habitats and 
features most important to black pinesnake conservation, and addresses 
the standards supported by ADCNR. In addition, many forest operations 
in Alabama and Mississippi may already be operating in a manner 
consistent with the 4(d) rule. For instance, the language associated 
with conversion of longleaf pine forests to other forest types is 
consistent with Sustainable Forestry Initiative guidelines that protect 
rare and ecologically significant native forests (SFI 2015, p. 4), 
while some landowners indicated that they did not routinely remove 
stumps in these habitats.
    (14) Comment: One state agency (ADCNR) and many public commenters 
requested that the comment period be extended for the proposed listing.
    Our Response: We consider the two comment periods on the proposed 
listing, totaling 120 days, to have provided the public a sufficient 
opportunity for submitting comments. We provided a 60-day comment 
period associated with the publication of the listing proposed rule, 
which opened on October 7, 2014 (79 FR 60406), and closed on December 
8, 2014. We then reopened the comment period for an additional 60 days 
on March 11, 2015, in association with our publication of our proposed 
critical habitat designation for the black pinesnake (80 FR 12846). 
This second comment period closed on May 11, 2015.
    The Act requires the Service to publish a final rule within 1 year 
from the date we propose to list a species. In order to extend the 
comment period, we would have risked missing this deadline, unless we 
sought an extension under section 4(b)(6)(B)(i) of the Act. The Act 
allows this extension is if there is substantial disagreement regarding 
the sufficiency or accuracy of the available data relevant to the 
determination or revision concerned, but only for 6 months and only for 
purposes of soliciting additional data. Based on the comments we 
received and data we evaluated, although there are differences in 
interpretation of the existing data, there is not substantial 
scientific disagreement regarding the sufficiency or accuracy of the 
available data. Please also see our response to Comment 11, above.
    (15) Comment: MDWFP and many public commenters voiced opposition to 
any regulations that would prohibit landowners from managing their 
lands for their objectives with the focus on timber management 
operations. The Secretary of State for Mississippi and many public 
commenters expressed concern due to their perception that the proposed 
4(d) rule, as written, specifically required landowners to adhere to 
certain timber management metrics, including placing limitations on 
harvest size and canopy closure, as well as requiring the planting of 
only longleaf pine.
    Our Response: Throughout the development of this listing rule, we 
have attempted to describe black pinesnake habitat by characterizing 
the historical ecosystem in which pinesnakes evolved, and the primary 
habitat features important to pinesnakes, with data from publications 
and reports to support the utility of these habitat features. This has 
been taken by many as a prescription for how all landowners must manage 
their land from now on; however, in no way is the rule intended to 
prescribe management conditions. The Service will not require 
landowners to harvest their timber in a certain way, nor will we 
restrict landowners from managing loblolly or other pine tree species 
on their lands.
    We will continue to recommend that longleaf pine be the preferred 
overstory species within the historical longleaf range. While black 
pinesnake habitat management can be successfully integrated with 
forestry practices in all pine species, longleaf pine is better suited 
for many reasons. Longleaf pines have open crowns that allow more

[[Page 60475]]

sunlight to reach the ground. The trees can be burned at younger ages 
and can be managed on longer rotations. Further, longleaf pines are 
more disease- and insect-resistant when compared to loblolly pines, and 
more resistant to wind damage due to the deep taproot and smaller crown 
density.
    It should also be noted that densely planted pine plantations are 
not considered habitat for the black pinesnake, and, therefore, any 
actions in these stands are unlikely to result in take. In addition, 
landowners are not required to adhere to the conditions outlined in the 
4(d) rule. There is no requirement to follow these voluntary guidelines 
and landowners who would prefer not to use the exemptions may consult 
with the Service on their forestry management practices if there is a 
potential to impact the black pinesnake. No consultation would be 
needed for forest management activities outside of the known areas 
occupied by the subspecies.
    (16) Comment: ADCNR and many public commenters stated that it is 
not essential for longleaf pine to be the primary forest cover for an 
area to be considered black pinesnake habitat and that it is the 
structure of the forest that is more important. Therefore, longleaf 
pine should be de-emphasized throughout the rule, and it should not be 
a requirement to meet the provisions for the 4(d) rule. Consequently, 
some public commenters maintained that if there is no indication that 
longleaf pines are a necessary component of black pinesnake habitat, 
then the assumption that black pinesnake populations have declined 
proportionately with the decline in longleaf pine forests is invalid.
    Our Response: We believe the structure of the forest occupied by 
black pinesnakes is very important, and we recognize that some studies 
have shown that pinesnakes have not always been found exclusively using 
longleaf pine forests, though it should be noted that the need for 
open-canopy and herbaceous understory has been supported in these 
studies.
    Many forests are not managed to foster open conditions in the 
understory. Typical pine plantation management (i.e., characterized by 
high stocking rates), for instance, differs from the conditions favored 
by this subspecies for several reasons. Pine plantations are not 
typically maintained in the open-canopied condition with an abundant 
herbaceous groundcover that is characteristic of the structure of this 
historical ecosystem. These converted forests differ from the native 
longleaf pine ecosystem in which the black pinesnake evolved, most 
noticeably in that they exhibit frequent canopy closure, often use 
practices that destroy subsurface structure, and have more limitations 
on how fire may be used as the primary management tool.
    Even in cases where loblolly is favored in a more open condition, 
it does not function in the same way as longleaf over the long term. In 
fact, the Longleaf Alliance has said, ``The introduction of periodic 
fire and recovery of groundcover and wildlife communities may be 
possible without longleaf for the short term. Eventually, however, the 
fire regime necessary to maintain the desired groundcover and wildlife 
communities can only be maintained in longleaf pine forests. Treating 
longleaf pine like loblolly pine will not achieve the desired results'' 
(Longleaf Alliance 2015, unpaginated). The tree species itself matters 
because, over time, the fire necessary to maintain the herbaceous 
groundcover that supports this subspecies is only well-tolerated by 
longleaf pine. Further, Means (2005, p. 76, and references therein) 
suggested that longleaf pine is likely to be more important than other 
southern pine species to animals using stumpholes, because longleaf 
pine has a more resinous heartwood, deeper taproot, and lateral roots 
spreading out 50 ft (15.2 m) or more. Therefore, we believe that the 
decline of the black pinesnake is closely linked to the decline of the 
characteristic longleaf pine ecosystem.
    Typically, if converted forests display an open-canopied condition, 
it is only temporary, and when the canopy closes that habitat becomes 
unsuitable for both black pinesnakes and their prey. Occurrence of 
pinesnakes in these forests should not be confused with preference for 
those types of habitat. We believe the pinesnakes in converted forests 
are selecting for the best available sub-optimal habitat, and although 
they may be persisting sporadically in the modified habitat, once the 
canopy closes again they will be forced to relocate because there will 
be no herbaceous groundcover to support prey populations on which the 
subspecies depends for survival. This has been supported through radio-
telemetry data, which show that black pinesnakes most often utilize 
open-canopied forests (Baxley and Qualls 2009, p. 289).
    A long history of removal of subsurface structure (e.g., stumps and 
root channels) and conversion from native forests to other uses has 
eliminated both the subspecies and suitable habitat; therefore, it is 
unlikely that sites that have been intensively managed through multiple 
rotations or converted to agriculture or urban areas will support 
populations long term. This is likely because the refugia habitat has 
been removed, the surface can no longer support prey species, road 
density and thereby the threat posed by road crossings increases, or 
simply because the habitat (in any condition, optimal or suboptimal) no 
longer remains on a site.

Public Comments

General Issue 1: Captive Propagation
    (17) Comment: A number of commenters representing the captive 
breeding community voiced concern over the listing, especially with its 
impact to pet owners, future sales of black pinesnakes, work of 
researchers, and zoological institutions. Some specifically requested 
that captive-bred animals be excluded from the listing or exempted 
through a 4(d) rule to allow unfettered continuation of captive 
breeding, pet ownership, and trade.
    Our Response: Black pinesnakes acquired before the effective date 
of the final listing of this subspecies (see DATES, above) may be 
legally held and bred in captivity as long as laws regarding this 
activity within the State in which they are held are not violated. This 
would include snakes acquired pre-listing by pet owners, researchers, 
and zoological institutions. Future sale of captive-bred black 
pinesnakes, born from pre-listing acquired parents, within their State 
of their origin would be regulated by applicable laws of that State. If 
individuals outside the snake's State of origin wish to purchase 
captive-bred snakes, they would have to first acquire a 10(a)(1)(A) 
Interstate Commerce permit from the Service (Web site: http://www.fws.gov/forms/3-200-55.pdf). Information about the intended purpose 
of purchasing a black pinesnake is required because using federally 
threatened species as pets is not consistent with the purposes of the 
Act, which is intended to support the conservation of species and 
recovery of wild populations. However, an animal with threatened 
species status may be legally kept in captivity if it is captive-bred 
and used for educational and/or breeding purposes consistent with the 
aforementioned intent of the Act. Through the permit process, we are 
able to track and monitor the trade in captive-bred listed species. For 
this reason, we believe exemption for this activity through a 4(d) rule 
would not be appropriate, as it would not meet the standard of 
providing for the conservation of the subspecies.

[[Page 60476]]

    (18) Comment: Several commenters stated that the Service should 
have taken information relating to the large captive-bred population 
into the decision to list the subspecies. Several other commenters 
stated listing was unnecessary because captive-bred animals could be 
released in the wild.
    Our Response: While there have been great advances by snake 
enthusiasts and hobbyists in successful breeding programs for 
pinesnakes, they are not animals bred to be returned to wild habitats. 
The Service views captive propagation programs as a last recourse for 
conserving species. The Act directs the Service to focus on conserving 
the ecosystems upon which endangered and threatened species depend. 
Loss of habitat is one of the primary threats to this subspecies. 
Before captive animals can be reintroduced, questions of genetics, 
disease, and survival in the wild must be evaluated, which is generally 
done in a recovery setting while considering all of the options 
available for conservation. Captive populations, even when they are 
healthy and genetically diverse, will likely not survive in the wild 
without adequate habitat to support the subspecies. As we begin the 
recovery process, we will consider various options for recovery of the 
subspecies, which may include captive propagation. If you have interest 
in participating, please refer to the Available Conservation Measures 
section, below, for further guidance on participating in this process.
General Issue 2: Forestry Management Practices
    (19) Comment: Several commenters representing the forestry industry 
stated that the Service misunderstands the nature and ecology of modern 
pine plantations and mistakenly thinks that pine plantations are static 
``closed canopies'' and have ``thick mid-stories.'' They stated that 
pine plantations can provide suitable black pinesnake habitat, and 
across a broad, actively-managed forest landscape, pine plantations 
that are at different stages of development ensure that suitable 
habitat is available at all times. The commenters referred to a 2013 
National Council for Air and Stream Improvement (NCASI) report, which 
states that of the almost 9 million acres of planted pine forests owned 
by large corporate forest landowners, two-thirds of those acres were in 
some form of open-canopied condition. The commenters suggested that 
suitable black pinesnake habitat should include this type of matrix of 
forested stands where the canopy cover is at various stages of being 
open and closed, as the pinesnakes would always be able to find areas 
where they could locate food, shelter, and mates.
    Our Response: We sincerely appreciate the efforts of forest 
landowners to provide habitat for a variety of species and would like 
to continue working with the forest industry to further explore the 
benefits of pine plantations. We believe there are several potential 
issues with depending on a matrix of pine plantations to provide 
suitable habitat for the subspecies long term; most notably, that not 
all forests are managed in a way that will protect the subspecies or 
its habitat. At the time of the survey cited by the commenter, two-
thirds of those acres were comprised of young trees that had not grown 
large enough to close the canopy, as many of those lands go through 
cycles of having closed canopies. For example, if a stand becomes 
closed when the trees are 5 to 7 years old, and the first thinning is 
at age 14 to 20, there is a period of 7 to 15 years when that stand is 
unsuitable for pinesnakes.
    The idea that a matrix of intermittently open- and closed-canopied 
forest stands provides suitable habitat for black pinesnakes relies on 
several assumptions, such as that suitable open habitat will always be 
located in close proximity to areas where the canopy is closing, that 
areas of suitable habitat will be expansive enough to support the large 
home ranges of these snakes, and that snakes which must relocate due to 
canopy closure will be able to find adequate access to relocated mates 
and prey in their shifted home range. Both Lane et al. (2013, p. 231) 
and Hanberry et al. (2013, p. 57) state that small mammal abundance 
decreases in response to canopy closure, often to the point of mammals 
abandoning the site. Therefore, stands such as these, although open for 
a part of the time during the cycle of management and harvesting 
activities, are not stable habitats for pinesnakes and do not 
contribute to the long-term conservation of the subspecies. In 
addition, if incompatible site preparation activities remove subsurface 
refugia from a site, it is unlikely pinesnakes would have retreat sites 
within these stands for several years following harvest. This increases 
the amount of time the subspecies has to spend on the surface 
vulnerable to predators.
    (20) Comment: Commenters disagreed with the Service's 
characterization that site preparation in a modern pine plantation 
frequently involves mechanical clearing of downed logs and stumps, 
greatly reducing the availability of suitable refugia to black 
pinesnakes.
    Our Response: It is likely that activities during site preparation 
that may greatly reduce the availability of refugia, such as clearing 
of stumps and other subsurface disturbance, may not occur as commonly 
now as in previous years, particularly on industrial forest lands, and 
we have altered the language in this final rule to reflect that. 
However, because we received comments from many others asking that 
these mechanical site preparation activities be exempted under the 4(d) 
rule, we know that they do still occur. These activities must be 
identified as potential threats because one of the most important 
features of the habitat for black pinesnakes is the presence and 
availability of naturally decayed or burned-out pine stump holes in 
which the snakes spend a large percentage of their time. Although 
pinesnakes may occasionally use debris piles and other aboveground 
refugia, it is the subterranean refugia (i.e., stump holes) that are 
thought to be most important to the subspecies. Those who manage to the 
standards laid out under the 4(d) rule will be exempted from ``take'' 
for this subspecies.
General Issue 3: Private Land Issues
    (21) Comment: Many public commenters stated that there are 
insufficient data to determine the effects of the listing on 
landowners. They expressed concern that the listing will put an 
economic burden on private landowners and restrict their activities.
    Our Response: We understand that there is confusion and concern 
about the effect of listing the black pinesnake. We acknowledge that 
some economic impacts are a possible consequence of listing a species 
under the Act. However, the Act does not allow us to consider such 
impacts when making a listing decision. Rather, section 4(b)(1)(A) of 
the Act specifies that listing determinations be made ``solely on the 
basis of the best scientific and commercial data available.'' Such 
potential costs are therefore precluded from consideration in 
association with a listing determination. We are required to consider 
economic impacts in the decision to designate critical habitat, and 
have conducted an economic analysis for the proposed critical habitat 
rule, which is available at http://www.regulations.gov under Docket No. 
FWS-R4-ES-2014-0065.
    The Service believes that restrictions alone are neither an 
effective nor a desirable means for achieving the conservation of 
listed species. We prefer to work collaboratively with private

[[Page 60477]]

landowners. We encourage any landowners with a listed species present 
on their properties and who think they may conduct activities that 
negatively impact that species to work with the Service. We can help 
those landowners determine whether a habitat conservation plan (HCP) or 
safe harbor agreement (SHA) may be appropriate for their needs. These 
plans or agreements provide for the conservation of the listed species 
while providing the landowner with a permit for incidental take of the 
species during the course of otherwise lawful activities. Furthermore, 
our 4(d) rule for black pinesnake, which includes exemptions for 
certain forest management activities, was developed with the intent of 
maximizing timber management flexibility to landowners while also 
providing for the conservation of the subspecies. Other voluntary 
programs, such as the Service's Partners for Fish and Wildlife program 
and the Natural Resources Conservation Service's Farm Bill programs, 
offer opportunities for private landowners to enroll their lands and 
receive cost-sharing and planning assistance to reach their management 
goals. The conservation and recovery of endangered and threatened 
species, and the ecosystems upon which they depend, is the ultimate 
objective of the Act, and the Service recognizes the vital importance 
of voluntary, nonregulatory conservation measures that provide 
incentives for landowners in achieving that objective. We are committed 
to working with landowners to conserve this subspecies and develop 
workable solutions.
    (22) Comment: Several commenters stated that property rights 
granted by the Constitution preclude the government from preventing 
landowners from managing property to meet their goals. Landowners 
should be able to make use of property at their own free will as long 
as it falls within the current county, State, and Federal regulations.
    Our Response: The agency acknowledges the rights granted by the 
Constitution. Prior court rulings address this concern in more detail. 
However, Section 9 of the Act makes it illegal for anyone to ``take'' 
(defined as harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, collect, or attempt any of these actions) an endangered or 
threatened species. However, the mere promulgation of a regulation, 
such as listing a species under the Act, does not prevent landowners 
from managing their property to meet their goals. As discussed in our 
response to Comment 21, above, programs are available to private 
landowners for managing habitat for listed species, as well as permits 
that can be obtained to protect private landowners from the take 
prohibition when such taking is incidental to, and not the purpose of, 
the carrying out of an otherwise lawful activity. Private landowners 
may contact their local Service field office to obtain information 
about these programs and permits.
    (23) Comment: Private landowners should be compensated if land use 
is restricted on their property.
    Our Response: There is no provision in the Act to compensate 
landowners if they have a federally listed species on their property. 
However, as addressed in our response to Comment 22, above, the private 
landowners' only obligation is not to ``take'' the subspecies, and many 
forestry management activities have now been exempted from ``take'' 
(see 4(d) Rule, below). Also, as mentioned in our response to Comment 
21, above, we have a number of programs to provide management guidance 
and financial assistance to private landowners managing their lands to 
benefit the recovery of listed species. A number of other Federal 
agencies and individual States provide financial assistance and similar 
programs to interested landowners.
    (24) Comment: Several commenters stated that no private lands or 
State lands should be included in the listing.
    Our Response: Under the Act, we determine whether a species 
warrants listing based on our assessment of the five-factor threat 
analysis using the best available scientific and commercial 
information; land ownership is not a consideration in that 
determination. The action of listing a species provides protection for 
the species wherever it occurs. Protection for lands essential to the 
conservation of a listed species is covered under a designation of 
critical habitat and is not a part of this listing rule. A proposed 
rule to designate critical habitat for the black pinesnake was 
published separately on March 11, 2015 (80 FR 12846), and comments 
regarding that proposal will be addressed in the final critical habitat 
determination and if appropriate, the designation.
    (25) Comment: Several commenters noted that the continuous threat 
of species listings and designations of critical habitat will be a 
disincentive for landowners to participate in longleaf pine restoration 
efforts, may encourage more landowners to grow a monoculture of 
loblolly, or may encourage more landowners to abandon forest ownership 
and management.
    Our Response: We acknowledge and commend landowners for their land 
stewardship and want to continue to encourage those management 
practices that support the black pinesnake. Under the Act, we have an 
obligation to assess threats to species and, if appropriate, provide 
for their protection. We have no desire to limit private landowners' 
ability to provide habitat for these imperiled species; in fact, we 
have a number of financial incentives through our Private Lands program 
to help private landowners manage their properties for endangered and 
threatened species. Continuation of longleaf pine restoration efforts 
across the subspecies' range will be necessary for conservation and 
recovery of this subspecies and many other species. We have reviewed 
all the comments we received from forest stakeholders and have used 
them to refine the 4(d) rule and improve the balance of activities that 
would promote conservation of the black pinesnake and its habitat and 
not unnecessarily burden private landowners. Please see also our 
responses to Comments 21 and 23, above.
General Issue 4: Science
    (26) Comment: Several commented that the Service is using any 
scientific and commercial data available and not necessarily the best 
available. They further stated that the Service did not undertake 
efforts to fill the data gaps concerning life history, habitat, and 
status of the black pinesnake and have put the burden on private 
landowners to provide commercial and scientific data rebutting the data 
advanced by the Service.
    Our Response: No new data were provided by these commenters to 
support this statement, although some have offered different 
interpretations of the existing data. We have used the best scientific 
and commercial data available to finalize our determination of 
threatened status for the black pinesnake. Furthermore, our analysis is 
supported by our peer reviewers. Please also see our responses to 
Comments 11 and 14, above.
    (27) Comment: One commenter stated that the sightings of black 
pinesnakes in Alabama in the mid-1990s were reported by individuals 
that were not biologists or herpetologists, so these records cannot be 
``scientific data.''
    Our Response: All Alabama records for the black pinesnake are 
either from the Alabama Natural Heritage Program's databases or from 
reputable herpetologists. Heritage data are automatically accepted by 
the Service as valid due to the strict criteria for their acceptance as 
scientific records. Although the descriptive data (observer, date, 
coordinates, condition of the

[[Page 60478]]

animal) were not always recorded at a consistent level of detail in 
some of the older records, we scrutinized all reputable location data 
to differentiate between separate pinesnake observations.
General Issue 5: Procedural/Legal Issues
    (28) Comment: One commenter stated that the Service should not use 
information that is not peer-reviewed in listing determinations.
    Our Response: The Act and our regulations do not require us to use 
only peer-reviewed literature, but instead they require us to use the 
``best scientific data available'' in a listing decision. Our Policy on 
Information Standards under the Act (published in the Federal Register 
on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 
515 of the Treasury and General Government Appropriations Act for 
Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated 
Information Quality Guidelines (http://www.fws.gov/informationquality/
), provide criteria and guidance, and establish procedures to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
list a species. Primary or original information sources are those that 
are closest to the subject being studied, as opposed to those that 
cite, comment on, or build upon primary sources. In making our listing 
decisions, we use information from many different sources, including 
articles in peer-reviewed journals, scientific status surveys and 
studies completed by qualified individuals, other unpublished 
governmental and nongovernmental reports, reports prepared by industry, 
personal communication about management or other relevant topics, 
management plans developed by Federal agencies or the States, 
biological assessments, other unpublished materials, experts' opinions 
or personal knowledge, and other sources. In finalizing this listing 
determination, we have relied on published articles, unpublished 
research, habitat reports, digital data publicly available on the 
Internet, and the expert opinions of subject biologists.
    That said, in accordance with our peer review policy published on 
July 1, 1994 (59 FR 34270), we solicited peer review from knowledgeable 
individuals with scientific expertise that included familiarity with 
this subspecies and other pinesnakes, the geographic region in which 
the subspecies occurs, and conservation biology principles. 
Additionally, we requested comments or information from other concerned 
governmental agencies, the scientific community, industry, and any 
other interested parties concerning the proposed rule. Comments and 
information we received helped inform this final rule.
    (29) Comment: Several commenters stated that because the proposed 
rule arose from the Service's settlement of a lawsuit, the Service is 
indirectly encouraged to list the subspecies, or avoid any delays in 
listing, even though such delays might result in a more scientifically 
sound analysis of the subspecies.
    Our Response: Section 4 of the Act and its implementing regulations 
(50 CFR part 424) set forth the procedures for adding species to the 
Federal Lists of Endangered and Threatened Wildlife and Plants. We 
adhered to the requirements of the Act to determine whether a species 
warrants listing based on our assessment of the five-factor threats 
analysis using the best available scientific and commercial data (see 
Summary of Factors Affecting the Species, below). We had already 
determined, prior to the settlement agreement, that the black pinesnake 
warranted listing under the Act, but listing had been precluded by the 
necessity to commit limited funds and staff to complete higher priority 
species actions. The black pinesnake has been included in our annual 
candidate notices of review since 1999, during which time scientific 
literature and data have and continue to indicate that the subspecies 
is detrimentally impacted by ongoing threats, and we continued to find 
that listing was warranted but precluded. Thus, the listing process is 
not arbitrary, but uses the best available scientific and commercial 
data and peer review to ensure sound science and sound decision-making.
    (30) Comment: Several commented that the Service should not list 
another species in Alabama because the Service is unable to fulfill 
various mandated obligations with respect to other species already 
listed (i.e., timely recovery plans, 5-year reviews)
    Our Response: The listing of a species is based on an analysis of 
threats according to the Act (see Determination section, below). The 
Act does not allow the Service to delay listing of new species until 
the Service has completed certain actions, such as recovery plans and 
5-year reviews, for other previously listed species.
    (31) Comment: Several comments stated that our proposed rule denied 
potentially affected landowners due process in that all landowners were 
not provided actual notice of this rulemaking.
    Our Response: In the proposed listing rule published on October 7, 
2014 (79 FR 60406), we requested that all interested parties submit 
written comments on the proposal by December 8, 2014. We reopened the 
comment period on the listing proposal on March 11, 2015 (80 FR 12846) 
with our publication of a proposed critical habitat designation for the 
subspecies. This second 60-day comment period ended on May 11, 2015. 
During both comment periods, we also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. 
Newspaper notices inviting general public comment were published in the 
Mobile Press Register and Hattiesburg American on October 12, 2014, and 
again on March 15, 2015. We also presented several webinars on the 
proposed listing and critical habitat rules, and invited all 
stakeholders, media, and congressional representatives to participate 
and ask any questions. The webinar information was posted on our Web 
site along with copies of the proposed listing rule, press release, and 
a question/answer document. As such, we have met our obligations under 
the Act with regard to notification concerning the proposed listing.
General Issue 6: Other
    (32) Comment: Several commented that existing State regulations are 
adequate to protect the black pinesnake. A Federal listing would only 
duplicate existing protection because it is illegal to kill the snakes.
    Our Response: Section 4(b)(1)(A) of the Act requires us, in making 
a listing determination, to take into account those efforts being made 
by a State or foreign nation, or any political subdivision of the State 
or foreign nation, to protect the species. Under Factor D in the 
proposed and final rules to list the subspecies, we provide an analysis 
of the existing regulatory mechanisms. In that analysis, we consider 
relevant Federal, State, and tribal laws and regulations. Regulatory 
mechanisms may negate the need for listing if we determine such 
mechanisms address the threat to the species such that listing is not, 
or no longer, warranted. However, for the black pinesnake, the best 
available information supports our determination that State regulations 
are not adequate to remove the threats to the point that listing is not 
warranted. Existing State

[[Page 60479]]

regulations, while providing some protection for individual snakes, do 
not provide any protection for their habitat (see Summary of Factors 
Affecting the Species, Factor D discussion). Loss of habitat has been a 
primary driver of the subspecies' decline. The Act provides habitat 
protection for listed species both through section 7 and the 
designation of critical habitat. In addition, listing provides 
resources under Federal programs to facilitate restoration of habitat, 
and helps bring public awareness to the plight of the species.
    (33) Comment: One commenter stated that the Service should delay 
listing and work with other State and Federal agencies and with private 
landowners to develop prescribed burning programs to improve habitat 
and reverse the trend of decline of the black pinesnake, as it is 
largely due to the lack of fire in the woods.
    Our Response: We acknowledge that the absence of prescribed burning 
has contributed to the degradation of the black pinesnake's habitat and 
the decline of the longleaf pine ecosystem. The Service has made the 
determination that the black pinesnake is likely to become endangered 
in the foreseeable future and that listing is warranted after an 
analysis of the five threat factors under the Act. There is no 
provision in the Act that would allow us to decline to list a species 
once that determination has been made. Furthermore, as discussed in our 
response to Comment 14, the criteria for delaying our listing decision 
have not been met. As discussed above in our response to Comment 21, we 
have a number of programs that provide assistance and financial 
incentives to private landowners to increase the use of fire as a 
management tool, and we will continue to actively pursue ways to work 
with the public and partners to reverse the decline of the black 
pinesnake and its habitat.
    (34) Comment: Several commenters stated that endangered species 
protection is more effectively achieved by allowing forest landowners 
to continue to manage their land under voluntary best management 
practices or by providing incentives to landowners to initiate longleaf 
pine management. Landowners and groups like Longleaf Alliance and 
American Forest Foundation encourage landowners to return to longleaf 
pine and to manage with fire, thinning, and harvesting, all of which 
enhances black pinesnake habitat. Regulations through listing would 
serve to further deter cooperative management between public agencies 
and landowners.
    Our Response: We recognize that the black pinesnake remains 
primarily on lands where habitat management has allowed them to 
survive, due in large part to voluntary actions incorporating good 
land-stewardship, and we want to encourage management practices that 
support the subspecies. However, the Service, in conducting its 
assessment of the status of the black pinesnake according to standards 
in the Act, has determined that certain forest management practices 
have contributed to the subspecies' decline. In order to protect the 
black pinesnake from continued decline, and because we have determined 
that it is likely to become endangered in the foreseeable future, we 
are listing the subspecies as threatened. We do recognize the 
contributions of forest landowners and have exempted from take a number 
of forest management activities under the 4(d) rule. We maintain that 
the best chance for conservation and, ultimately, the recovery of the 
subspecies will require the protections afforded by listing, as well as 
voluntary conservation measures undertaken by private landowners, with 
support from the States and conservation organizations. We, and other 
Federal and State agencies, have a number of existing programs that 
provide incentives to private landowners to initiate longleaf pine 
management (e.g., Working Lands for Wildlife, Conservation Reserve 
Program). We will continue to work with the public through these 
programs to benefit the black pinesnake as we have done for other 
longleaf pine endemics such as the threatened gopher tortoise and 
endangered red-cockaded woodpecker (Picoides borealis) and dusky gopher 
frog (Rana sevosa).
    (35) Comment: Several commenters asserted that because the proposed 
rule was opposed by the ADCNR and Alabama Forestry Association (AFA), 
which have expertise with the subspecies and Alabama forests, that the 
Service should not ignore ADCNR's admonitions to gather further 
information before proceeding with a listing decision.
    Our Response: We acknowledge and value the expertise of the ADCNR 
and the AFA. We fully respect the position of the State, even when we 
do not entirely agree on their interpretation of the data. The Service 
is required to make a determination based on the best available 
scientific information, and after reviewing the comments presented by 
ADCNR and AFA, as well as all other comments we received, we believe 
that the information warrants a final listing determination as 
threatened for the black pinesnake. ADCNR stated that it supported a 
4(d) rule that provides for open canopy conditions; abundant ground 
cover; and refugia habitat such as stumps, snags, and woody debris, and 
we believe our 4(d) rule in this final listing determination is 
consistent with that recommendation.
    (36) Comment: One commenter questioned why the black pinesnake 
needed Federal listing as it occurs in the range of other listed 
species.
    Our Response: The current range of the black pinesnake overlaps 
with several other longleaf pine endemics that are federally listed 
including the gopher tortoise, red-cockaded woodpecker, and dusky 
gopher frog. The black pinesnake likely receives benefit from longleaf 
pine restoration efforts and other recovery actions implemented for 
these listed species, as some threats to the black pinesnake are 
similar to other listed species in its range. However, there are 
aspects of black pinesnake habitat that are unique to them, 
specifically their use of and need for belowground habitat, such as 
stump holes, which are not required by these other listed species.
    Any ongoing conservation actions and the manner in which they are 
helping to ameliorate threats to the subspecies were considered in our 
final listing determination for the black pinesnake (see ``Conservation 
Efforts to Reduce Habitat Destruction, Modification, or Curtailment of 
Its Range'' under Factor A, below). Our determination is guided by the 
Act and its implementing regulations, considering the five listing 
factors and using the best available scientific and commercial 
information. Our analysis supported our determination of threatened 
status for this subspecies.
    (37) Comment: Several commenters questioned why the subspecies 
should be listed if the most important areas are already being 
protected and managed. Another commenter stated that the vast acres of 
public lands that exist within the range of the black pinesnake should 
be enough to ensure the subspecies continues to persist.
    Our Response: Conservation of the black pinesnake will require 
collaboration between Federal, State, and local agencies wherever the 
subspecies occurs. About half of the known black pinesnake populations 
occur primarily on public lands that are typically managed to protect 
longleaf pine habitat, and management efforts are ongoing on these 
public lands that benefit the black pinesnake; however, these efforts 
do not always meet all of the ecological needs of the subspecies (see 
Comment 36, above). We consider the populations occupying the De Soto

[[Page 60480]]

NF in Mississippi as representing the core of the subspecies' range, 
and these public lands are very important for the conservation and 
recovery of the black pinesnake, but Federal lands alone are 
insufficient to conserve the subspecies. These areas represent only a 
small fraction of the current range of the subspecies. Populations on 
the periphery of the range have high conservation value as well in 
terms of maintaining the subspecies' genetic integrity, representing 
future conservation strongholds, providing future opportunities for 
population connectivity and augmentation, and contributing to important 
ecosystem functions in the ecological communities where they occur (see 
also ``Conservation Efforts to Reduce Habitat Destruction, 
Modification, or Curtailment of Its Range'' under Factor A, below).
    (38) Comment: One individual commented that we should exempt 
activities conducted with cost-share funding sources under the 4(d) 
rule. This would include sources such as the Service's Partners for 
Fish and Wildlife Program (PFW) and the Natural Resource Conservation 
Service's Conservation Reserve Program (CRP), Environmental Quality 
Incentives Program (EQIP), and Wildlife Habitat Incentives Program 
(WHIP).
    Our Response: The primary requirement for activities to qualify for 
exemption under section 4(d) of the Act is that they must be necessary 
and advisable to provide for the conservation of the species. These 
programs play an incredibly valuable role in conservation by providing 
assistance to private landowners to manage their lands. However, there 
is also a high level of variability among cost-share programs in terms 
of their primary conservation and management objectives, which makes it 
difficult to determine definitively which programs would always be 
beneficial to black pinesnakes. Therefore, we chose to concentrate on 
the forestry and management activities beneficial to pinesnakes for 
exemption, instead of the individual programs.

Summary of Changes From the Proposed Rule

    Based upon our review of the public comments, comments from other 
Federal and State agencies, peer review comments, and other new 
relevant information that has become available since the publication of 
the proposal, we reevaluated our proposed rule and made changes as 
appropriate. During the comment periods, the Service received 
clarifications and additional information on habitat, threats, the 
subspecies' biology, and timber management practices, which have been 
incorporated into this final rule. We have removed our discussion 
relating to the development of a candidate conservation agreement (CCA) 
for the black pinesnake between the Service and the U.S. Forest 
Service, U.S. Department of Defense, the Mississippi Army National 
Guard (MSARNG), and the Mississippi Department of Wildlife, Fisheries, 
and Parks because it was never finalized. However, the conservation 
measures outlined in the draft CCA were incorporated into the MSARNG's 
2014 updated integrated natural resources management plan (see 
``Conservation Efforts to Reduce Habitat Destruction, Modification, or 
Curtailment of Its Range'' under Summary of Factors Affecting the 
Species). We have also made the following significant changes to the 
4(d) rule:
     We have provided clarification to take exemptions 
regarding prescribed burning and invasive species and vegetation 
control.
     We have removed the take exemption for ``restoration along 
riparian areas and stream buffers'' as there is no need to exempt these 
activities because these areas are not considered habitat for the 
subspecies, and, therefore, activities associated with their 
restoration are unlikely to result in take or promote conservation of 
this subspecies. Any observations of black pinesnakes in riparian areas 
are incidental to individuals moving between areas of suitable habitat, 
typically uplands.
     We have broadened the scope of timber management 
activities exempted from take to include all forest management 
activities that maintain lands in a forested condition, except for 
conversion of longleaf-pine-dominated forests to other cover types or 
land uses, or those activities causing significant subsurface 
disturbance to the underground refugia for the black pinesnake.
     We have removed the requirement that silvicultural 
treatments exempted from take be performed under a management plan or 
prescription toward target conditions for optimal longleaf pine forest. 
Our revised 4(d) rule allows for the management of other open-canopied 
pine species.
    We have modified the list of actions that may result in take under 
section 9 in light of modifications made to the exemptions in the 4(d) 
rule, with the focus on protecting this subspecies' underground 
refugia.

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. Under section 4(a)(1) of the Act, we may list a species based 
on (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. Listing actions may be warranted based on any of 
the above threat factors, singly or in combination.

Factor A: The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    Fire-maintained southern pine ecosystems, particularly the longleaf 
pine ecosystem, have declined dramatically across the South. Current 
estimates show that the longleaf pine forest type has declined 96 
percent from the historical estimate of 88 million ac (35.6 million ha) 
to approximately 3.3 million ac (1.3 million ha) (Oswalt et al. 2012, 
p. 13). During the latter half of the 20th century, Louisiana, Alabama, 
and Mississippi lost between 60 and 90 percent of their longleaf 
acreage (Outcalt and Sheffield 1996, pp. 1-10). Recently, longleaf 
acreage has been trending upward in parts of the Southeast through 
restoration efforts; however, the footprint of the longleaf pine 
ecosystem across its historical range continues to contract, primarily 
due to conversion to loblolly pine (Oswalt et al. 2015, p. 504). 
Additionally, increases in longleaf pine acreage across the Southeast 
from longleaf restoration efforts do not overlap completely with the 
range of the black pinesnake (Ware 2014, pers. comm.); recent outlooks 
for the southern Gulf region still predict large percentage losses in 
longleaf pine in many of the areas currently occupied by the subspecies 
(Klepzig et al. 2014, p. 53). Southern forest futures models predict 
declines of forest land area between 2 and 10 percent in the next 50 
years, with loss of private forest land to urbanization accounting for 
most of these declines (Wear and Greis 2013, p. 78).
    Natural longleaf pine forests, which are characterized by a high, 
open canopy and shallow litter and duff layers, have evolved to be 
maintained by frequent, low-intensity fires, which

[[Page 60481]]

in turn restrict a woody midstory, and promote the flowering and seed 
production of fire-stimulated groundcover plants (Oswalt et al. 2012, 
pp. 2-3). Although there are records of black pinesnakes occurring in 
open-canopied forests with overstories of loblolly, slash, and other 
pines, they are historically associated with the natural longleaf pine 
forests, which have the abundant herbaceous groundcover (Duran 1998a, 
p. 11; Baxley et al. 2011, p. 161; Smith 2011, pp. 86, 100) necessary 
to support the black pinesnake's prey base (Miller and Miller 2005, p. 
202).
    The current and historical range of the black pinesnake is highly 
correlated with the current and historical range of these natural 
longleaf pine forests, leading to the hypothesis that black pinesnake 
populations, once contiguous throughout these forests in Alabama, 
Mississippi, and southeast Louisiana, have declined proportionately 
with the ecosystem (Duran and Givens 2001, pp. 2-3). In the range of 
the black pinesnake, longleaf pine is now largely confined to isolated 
patches on private land and larger parcels on public lands. Black 
pinesnake habitat has been eliminated through land use conversions, 
primarily conversion to agriculture and densely stocked pine 
plantations and development of urban areas. Most of the remaining 
patches of longleaf pine on private land within the range of the snake 
are fragmented, degraded, second-growth forests (see discussion under 
Factor E: Other Natural or Manmade Factors Affecting Its Continued 
Existence).
    Conversion of longleaf pine forests to densely stocked pine 
plantations often reduces the quality and suitability of a site for 
black pinesnakes. Duran (1998b, p. 31) found that black pinesnakes 
prefer the typical characteristics of the longleaf pine ecosystem, such 
as open canopies, reduced mid-stories, and dense herbaceous 
understories. He also found that these snakes are frequently 
underground in rotting pine stumps. Some pine plantations have closed 
canopies and thick mid-stories with limited herbaceous understories 
during portions of the timber rotation. Site preparation for planting 
of pine plantations sometimes involves clearing of downed logs and 
stumps, thereby interfering with the natural development of stump holes 
and root channels through decay or from burning, and greatly reducing 
the availability of suitable refugia (Rudolph et al. 2007, p. 563). 
This could have negative consequences if the pinesnakes are no longer 
able to locate a previous year's refugium, and are subject to 
overexposure from thermal extremes or elevated predation risk while the 
snakes are above ground searching for suitable shelter. Black 
pinesnakes have persisted in those areas of pine forest, composed of 
both longleaf pine and other pine species, where the forest structure 
approximates that which occurred historically in longleaf pine forests, 
as described above. However, conservation of black pinesnakes requires 
the long-term availability of these forest structure habitat features, 
not just in the landscape, but within the subspecies' activity range. 
If they are required to move from area to area with the change in 
habitat conditions, as would likely occur on a pine plantation, their 
fitness and long-term survival will be in question (Yager et al. 2006, 
pp. 34-36).
    When a site is converted to agriculture, all vegetation is cleared 
and underground refugia are destroyed during soil disking and 
compaction. Forest management strategies, such as fire suppression (see 
discussion under Factor E: Other Natural or Manmade Factors Affecting 
Its Continued Existence), increased stocking densities, densely 
planting off-site pine species (i.e., slash and loblolly pines), 
bedding, and removal of whole trees during harvesting (including downed 
trees and stumps), all contribute to degradation of habitat attributes 
preferred by black pinesnakes. It is likely that the diminishing 
presence and distribution of decaying stump holes and their associated 
rotting root channels may be a feature that limits the abundance of 
black pinesnakes within their range (Baxley 2007, p. 44).
    Baxley et al. (2011, pp. 162-163) compared habitat at recent (post-
1987) and historical (pre-1987) black pinesnake localities. She found 
that sites recently occupied by black pinesnakes were characterized by 
significantly less canopy cover; lower basal area; less midstory cover; 
greater percentages of grass, bare soil, and forbs in the groundcover; 
less shrubs and litter in the groundcover; and a more recent burn 
history than currently unoccupied, historical sites. At the landscape 
level, black pinesnakes selected upland pine forests that lacked 
cultivated crops, pasture and hay fields, developed areas, and roads 
(Baxley et al. 2011, p. 154). Thus, areas historically occupied by 
black pinesnakes are becoming unsuitable at both the landscape and 
microhabitat (small-scale habitat component) levels (Baxley et al. 
2011, p. 164).
    Degradation and loss of longleaf pine habitat (e.g., sandy, well-
drained soils with an open-canopied overstory of longleaf pine, a 
reduced shrub layer, and a dense herbaceous ground cover) within the 
range of the black pinesnake is continuing. The coastal counties of 
southern Mississippi and Mobile County, Alabama, are being developed at 
a rapid rate due to increases in the human population. While forecast 
models show that Federal forest land will remain relatively unchanged 
overall in the next few decades, projected losses in forest land are 
highest in the South, with declines in private forest land from 
urbanization accounting for most of the loss (Wear 2011, p. 31).
    Habitat fragmentation within the longleaf pine ecosystem threatens 
the continued existence of all black pinesnake populations, 
particularly those on private lands. This is frequently the result of 
urban development, conversion of longleaf pine sites to densely stocked 
pine plantations, and the associated increases in number of roads. When 
patches of available habitat become separated beyond the dispersal 
range of a species, populations are more sensitive to genetic, 
demographic, and environmental variability, and extinction becomes 
possible. This is likely a primary cause for the extirpation of the 
black pinesnake in Louisiana and the subspecies' contracted range in 
Alabama and Mississippi (Duran and Givens 2001, pp. 22-26).
    Private landowners hold more than 86 percent of forests in the 
South and produce nearly all of the forest investment and timber 
harvesting in the region (Wear and Greis 2013, p. 103). Forecasts 
indicate a loss of 11 to 23 million ac (4.5 million to 9.3 million ha) 
of private forest land in the South by 2060. This loss, combined with 
expanding urbanization in many areas and ongoing splitting of land 
ownership as estates are divided, will result in increased 
fragmentation of remaining forest holdings (Wear and Greis 2013, p. 
119). This assessment of continued future fragmentation throughout the 
range of the black pinesnake, coupled with the assumption that large 
home range size increases extinction vulnerability, emphasizes the 
importance of conserving and managing large tracts of contiguous 
habitat to protect the black pinesnake (Baxley 2007, p. 65). This is in 
agreement with other studies of large, wide-ranging snake species 
sensitive to landscape fragmentation (Hoss et al. 2010; Breininger et 
al. 2012). When factors influencing the home range sizes of the 
threatened eastern indigo snake (Drymarchon corais couperi) were 
analyzed, the results suggested that

[[Page 60482]]

maintaining populations of this subspecies will require large 
conservation areas with minimum fragmentation (Breininger et al. 2011, 
pp. 484-490).
    Impacts from urbanization are not consistent throughout the 
Southeast, and some parts of Mississippi and Alabama may actually 
experience human population declines (Wear and Greis 2013, p. 21); 
however, the most recent assessment still predicts increased change in 
urban land use in the next 45 years in most of the counties occupied by 
the black pinesnake (Klepzig et al. 2014, p. 23). Urbanization appears 
to have reduced historical black pinesnake populations in Mobile County 
by approximately 50 percent (Duran 1998a, p. 17), to the point where 
pinesnakes are thought to be extirpated from some areas directly 
surrounding Mobile (Nelson and Bailey 2004, p. 44). Substantial 
population declines were noted throughout the 1970s and 1980s (Mount 
1986, p. 35). Jennings and Fritts (1983, p. 8) reported that, in the 
1980s, the black pinesnake was one of the most frequently encountered 
snakes on the Environmental Studies Center (Center) in Mobile County. 
Urban development has now engulfed lands adjacent to the Center, and 
black pinesnakes are thought to likely have been extirpated from the 
property (Duran 1998a, p. 10). Black pinesnakes were commonly seen in 
the 1970s on the campus of the University of South Alabama in western 
Mobile; however, there have not been any observations in at least the 
past 25 years (Nelson 2014, p. 1).
    Populations on the periphery of the range have conservation value 
in terms of maintaining the subspecies' genetic integrity (i.e., 
maintaining the existing genetic diversity still inherent in 
populations that have not interbred in hundreds or thousands of years), 
providing future opportunities for population connectivity and 
augmentation, and contributing to important ecosystem functions (such 
as maintaining rodent populations) in the ecological communities where 
they occur (Steen and Barrett 2015, p. 1). Many of the populations on 
the edge of the range are smaller, which increases their susceptibility 
to localized extinction from catastrophic and stochastic events, 
subsequently causing further restriction of the subspecies' range. 
Additionally, the footprint of longleaf pine in the Southeast has gone 
through substantial contraction recently (Oswalt et al. 2015, p. 504), 
creating even higher susceptibility for these peripheral populations. 
Although the black pinesnake was thought to be fairly common in parts 
of south Alabama as recently as 30 years ago, we believe many 
populations have disappeared or drastically declined due to continued 
habitat loss and fragmentation. For instance, several sites where 
snakes have been captured historically are now developed and no longer 
contain habitat.
Conservation Efforts To Reduce Habitat Destruction, Modification, or 
Curtailment of Its Range
    When considering whether or not to list a species under the Act, we 
must identify existing conservation efforts and their effect on the 
species.
    The largest known populations of black pinesnakes (5 of 11) occur 
in the De Soto NF, which is considered the core of the subspecies' 
known range. The black pinesnake likely receives benefit from longleaf 
pine restoration efforts, including prescribed fire, implemented by the 
U.S. Forest Service in accordance with its Forest Plan, in habitats for 
the federally listed gopher tortoise, dusky gopher frog, and red-
cockaded woodpecker. (USDA 2014, pp. 60-65). Within the recently 
revised Forest Plan, black pinesnakes are included on lists of species 
dependent on fire to maintain habitat, species sensitive to 
recreational traffic, species that are stump and stump-hole associates, 
and species sensitive to soil disturbance (USDA 2014, Appendix G-85, G-
92, G-100). The management strategies described within the Forest Plan 
provide general guidance that states project areas should be reviewed 
to determine if such species do occur and if so to develop mitigation 
measures to ensure sustainability of the species, such as, in general, 
not removing dead and downed logs or other woody debris from rare 
communities.
    The MSARNG updated its INRMP in 2014, and outlined conservation 
measures to be implemented specifically for the black pinesnake on 
lands owned by the DoD and the State of Mississippi on Camp Shelby. 
Planned conservation measures include: Supporting research and surveys 
on the subspecies; habitat management specifically targeting the black 
pinesnake, such as retention of pine stumps and prescribed burning; and 
educational programs for users of the training center to minimize 
negative impacts of vehicular mortality on wildlife (MSARNG 2014, pp. 
93-94). However, the INRMP addresses integrative management and 
conservation measures only on the lands owned and managed by DoD and 
the State of Mississippi (15,195 ac (6,149 ha)), which make up 
approximately 10 percent of the total acreage of Camp Shelby (132,195 
ac (53,497 ha)). Most of this land is leased to DoD and owned by the 
Forest Service, which manages the land in accordance with its Forest 
Plan (see explanation above). Only 5,735 ac (2,321 ha) of the acreage 
covered by the INRMP provides habitat for the black pinesnake.
    Longleaf pine habitat restoration projects have been conducted on 
selected private lands within the range historically occupied by the 
black pinesnake and likely provide benefits to the subspecies (U.S. 
Fish and Wildlife Service 2012, pp. 12-13). Additionally, restoration 
projects have been conducted on wildlife management areas (WMAs) 
(Marion County WMA in Mississippi; Scotch, Fred T. Stimpson, and the 
area formerly classified as the Boykin WMAs in Alabama) occupied by or 
within the range of the black pinesnake, and on three gopher tortoise 
relocation areas in Mobile County, Alabama. The gopher tortoise 
relocation areas are managed for the open-canopied, upland longleaf 
pine habitat used by both gopher tortoises and black pinesnakes, and 
there have been recent records of black pinesnakes on the properties; 
however, the managed areas are all less than 700 ac (283 ha) and 
primarily surrounded by urban areas with incompatible habitat. 
Therefore, we do not believe they would provide sufficient area to 
support a black pinesnake population long term. Furthermore, although 
there is beneficial habitat management occurring on some of these WMAs 
and on the tortoise relocation areas, these efforts do not currently 
target the retention or restoration of black pinesnake habitat, which 
would include management targeted to maintain larger, unfragmented 
tracts of open longleaf habitat. Stump removal still occurs within the 
range of the subspecies and is particularly problematic as it removes 
refugia habitat for the subspecies. We will continue to work with our 
State and private partners to encourage the incorporation of these 
practices, where appropriate.
Summary of Factor A
    In summary, the loss and degradation of habitat was a significant 
historical threat, and remains a current threat, to the black 
pinesnake. The historical loss of habitat within the longleaf pine 
ecosystem occupied by black pinesnakes occurred primarily due to timber 
harvest and subsequent conversion of pine forests to agriculture, 
residential development, and intensively managed pine plantations. This 
loss of habitat has slowed

[[Page 60483]]

considerably in recent years, in part due to efforts to restore the 
longleaf pine ecosystem in the Southeast. However, habitat loss is 
continuing today due to due to incompatible forestry practices, 
conversion to agriculture, and urbanization, which result in increasing 
habitat fragmentation (see discussion under Factor E: Other Natural or 
Manmade Factors Affecting Its Continued Existence). While the use of 
prescribed fire for habitat management and more compatible site 
preparation has seen increased emphasis in recent years, expanded 
urbanization, fragmentation, and regulatory constraints will continue 
to restrict the use of fire and cause further habitat degradation (Wear 
and Greis 2013, p. 509). Conservation efforts are implemented or 
planned that should help maintain black pinesnake habitat on Camp 
Shelby and the De Soto NF; however, these areas represent a small 
fraction of the current range of the subspecies.
    Impacts from urbanization are not consistent throughout the 
Southeast, and some parts of Mississippi and Alabama may actually 
experience human population declines (Wear and Greis 2013, p. 21); 
however, the most recent assessment still predicts increased change in 
urban land use in the next 45 years in most of the counties occupied by 
the subspecies (Klepzig et al. 2014, p. 23). Smaller populations on the 
edge of the range are more susceptible to localized extinction from 
catastrophic and stochastic events. Additionally, the footprint of 
longleaf pine in the Southeast has gone through substantial contraction 
recently (Oswalt et al. 2015, p. 504), creating even higher 
susceptibility for these peripheral populations. Thus, habitat loss and 
continuing degradation of the black pinesnake's habitat remains a 
significant threat to this subspecies' continued existence.

Factor B: Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Although there is some indication that collection for the pet trade 
may have been a problem (Duran 1998a, p. 15), and that localized 
accounts of a thriving pet trade for pinesnakes have been reported 
previously around Mobile, Alabama (Vandeventer and Young 1989, p. 34), 
direct take of black pinesnakes for recreational, scientific, or 
educational purposes is not currently considered to be a significant 
threat. This overutilization would be almost exclusively to meet the 
demand from snake enthusiasts and hobbyists; however, the pet trade is 
currently saturated with captive-bred black pinesnakes (Vandeventer in 
litt. 2014). The need for the collection of wild specimens is thought 
to have declined dramatically from the levels previously observed in 
the 1960s and 1970s (Vandeventer in litt. 2014). Though concern has 
been expressed that Federal listing may increase the demand for wild-
caught animals (McNabb in litt. 2014), based on current information we 
have determined that overutilization for commercial, recreational, 
scientific, or educational purposes is not a threat to the black 
pinesnake at this time.

Factor C: Disease or Predation

    Snake fungal disease (SFD) is an emerging disease in certain 
populations of wild snakes, though specific pathological criteria for 
the disease have not yet been established. The disease has been linked 
to mortality events for other species, but has not yet been documented 
in Pituophis or in any of the States within the range of the black 
pinesnake. While it is suspected of threatening small, isolated 
populations of susceptible snake species, we currently have no evidence 
it is affecting the black pinesnake. We know of no other diseases that 
are affecting the subspecies, and, therefore, disease is not presently 
considered a threat to the black pinesnake.
    Red imported fire ants (Solenopsis invicta), an invasive species, 
have been implicated in trap mortalities of black pinesnakes during 
field studies (Baxley 2007, p. 17). They are also potential predators 
of black pinesnake eggs, especially in disturbed areas (Todd et al. 
2008, p. 544), and have been documented predating snake eggs under 
experimental conditions (Diffie et al. 2010, p. 294). In 2010 and 2011, 
trapping for black pinesnakes was conducted in several areas that were 
expected to support the subspecies; no black pinesnakes were found, but 
high densities of fire ants were reported (Smith 2011, pp. 44-45). 
However, the severity and magnitude of effects, as well as the long-
term effects, of fire ants on black pinesnake populations are currently 
unknown.
    Other potential predators of pinesnakes include red-tailed hawks, 
raccoons, skunks, red foxes, and feral cats (Ernst and Ernst 2003, p. 
284; Yager et al. 2006, p. 34). Lyman et al. (2007, p. 39) reported an 
attack on a black pinesnake by a stray domestic dog, which resulted in 
the snake's death. Several of these mammalian predators are 
anthropogenically enhanced (urban predators); that is, their numbers 
often increase with human development adjacent to natural areas 
(Fischer et al. 2012, pp. 810-811). However, the severity and magnitude 
of predation by these species are unknown.
    In summary, disease is not considered to be a threat to the black 
pinesnake at this time. However, predation by fire ants and urban 
predators may represent a threat to the black pinesnake.

Factor D: The Inadequacy of Existing Regulatory Mechanisms

    In Mississippi, the black pinesnake is classified as endangered by 
the Mississippi Department of Wildlife, Fisheries and Parks 
(Mississippi Museum of Natural Science 2001, p. 1). In Alabama, the 
pine snake (Pituophis melanoleucus spp.) is protected as a non-game 
animal (Alabama Department of Conservation and Natural Resources 2014, 
p. 1), and in the 2015 draft of the Alabama Comprehensive Wildlife 
Conservation Strategy, the black pinesnake is identified as a Priority 
1, Species of Greatest Conservation Need (ADCNR 2015, p. 297). In 
Louisiana, the black pinesnake is considered extirpated (Louisiana 
Department of Wildlife and Fisheries (LDWF) 2014, p. 2; Anthony in 
litt. 2015); however, Louisiana Revised Statutes for Wildlife and 
Fisheries were recently amended to prohibit killing black pinesnakes or 
removing them from the wild without a permit from the LDWF (Louisiana 
Administrative Code, 2014, p. 186), should they be found in the State 
again. Both Mississippi and Alabama have regulations that restrict 
collecting, killing, or selling of the subspecies, but do not have 
regulations addressing habitat loss, which has been the primary cause 
of decline of this subspecies.
    Where the subspecies co-occurs with species already listed under 
the Act, the black pinesnake likely receives ancillary benefits from 
the protective measures for the already listed species, including the 
gopher tortoise, dusky gopher frog, and red-cockaded woodpecker.
    The largest known expanses of suitable habitat for the black 
pinesnake are in the De Soto NF in Mississippi. The black pinesnake's 
habitat is afforded some protection under the National Forest 
Management Act (NFMA; 16 U.S.C. 1600 et seq.) where it occurs on lands 
managed by the Forest Service that are occupied by federally listed 
species such as the gopher tortoise and red-cockaded woodpecker. Forest 
Service rules and guidelines implementing NFMA require land management 
plans that include provisions supporting recovery of endangered and 
threatened species. As a result, land managers on the De Soto NF have 
conducted management actions, such as prescribed burning and

[[Page 60484]]

longleaf pine restoration, which benefit gopher tortoises, red-cockaded 
woodpeckers, and black pinesnakes. Within the recently revised Forest 
Plan, black pinesnakes are included on lists of species dependent on 
fire to maintain habitat, species sensitive to recreational traffic, 
species that are stump and stump-hole associates, and species sensitive 
to soil disturbance (USDA 2014, Appendix G-85, G-92, G-100). The 
management strategies described within the Forest Plan provide general 
guidance that states project areas should be reviewed to determine if 
such species do occur and if so to develop mitigation measures to 
ensure sustainability of the subspecies, such as, in general, not 
removing dead and downed logs or other woody debris from rare 
communities.
    As discussed under Factor A above, the MSARNG recently updated its 
INRMP for Camp Shelby, and outlined conservation measures to be 
implemented specifically for the black pinesnake on 5,735 ac (2,321 ha) 
of potential pinesnake habitat owned or managed by DoD. These measures 
will benefit black pinesnake populations, and include a monitoring 
protocol to help evaluate the population and appropriate guidelines for 
maintaining suitable habitat and microhabitats.
    In summary, outside of the National Forest and the area covered by 
the INRMP, existing regulatory mechanisms provide little protection 
from the primary threat of habitat loss for the black pinesnake. 
Longleaf restoration activities on Forest Service lands in Mississippi 
conducted for other federally listed species do improve habitat for 
black pinesnake populations located in those areas, but could be 
improved by ensuring the protection of the belowground refugia critical 
to the snake. We will continue to work with the Forest Service to 
design and implement a more aggressive strategy for protecting and 
monitoring the black pinesnake.

Factor E: Other Natural or Manmade Factors Affecting Its Continued 
Existence

    Fire is the preferred management technique to maintain the longleaf 
pine ecosystem, and fire suppression has been considered a primary 
reason for the degradation of the remaining longleaf pine forest. It is 
a contributing factor in reducing the quality and quantity of available 
habitat for the black pinesnake. According to Wear and Greis (2013, p. 
509), southern forests are likely to see increasing challenges to 
prescribed burning in the future as land-use changes involving fuels 
management, increased urban interface, and revised safety and health 
regulations will continue to constrain prescribed fire efforts. Some of 
these constraints could be in the form of reduced fire intervals or 
reductions in average area burned per fire event (strategies often used 
in management of pine plantations), which may not provide adequate fire 
intensity or frequency to suppress the overgrown understory and mid-
story conditions that black pinesnakes are known to avoid (Duran 1998b, 
p. 32). During a 2005 study using radio-telemetry to track black 
pinesnakes, a prescribed burn bisected the home range of one of the 
study animals. The snake spent significantly more time in the recently 
burned area than in the area that had not been burned in several years 
(Smith 2005, 5 pp.).
    Roads surrounding and traversing the remaining black pinesnake 
habitat pose a direct threat to the subspecies. Dodd et al. (2004, p. 
619) determined that roads fragment habitat for wildlife. Population 
viability analyses have shown that road mortality estimates in some 
snake species have greatly increased extinction probabilities (Row et 
al. 2007, p. 117). In an assessment of data from radio-tracked eastern 
indigo snakes, it was found that adult snakes have relatively high 
survival in conservation core areas, but greatly reduced survival in 
edges of these areas along highways, and in suburbs (Breininger et al. 
2012, p. 361). Clark et al. (2010, pp. 1059-1069) studied the impacts 
of roads on population structure and connectivity in timber 
rattlesnakes (Crotalus horridus). They found that roads interrupted 
dispersal and negatively affected genetic diversity and gene flow among 
populations of this large snake (Clark et al. 2010, p. 1059). In a 
Texas snake study, an observed deficit of snake captures in traps near 
roads suggests that a substantial proportion of the total number of 
snakes may have been eliminated due to road-related mortality and that 
populations of large snakes may be depressed by 50 percent or more due 
to this mortality (Rudolph et al. 1999, p. 130).
    Black pinesnakes frequent the sandy hilltops and ridges where roads 
are most frequently sited. Even on public lands, roads are a threat. 
During Duran's (1998b pp. 6, 34) study on Camp Shelby, Mississippi, 17 
percent of the black pinesnakes with transmitters were killed while 
attempting to cross a road. In a larger study currently being conducted 
on Camp Shelby, 14 (38 percent) of the 37 pinesnakes found on the road 
between 2004 to 2012 were found dead, and these 14 individuals 
represent about 13 percent of all the pinesnakes found on Camp Shelby 
during that 8-year span (Lyman et al. 2012, p. 42). The majority of 
road crossings occurred between the last 2 weeks of May and the first 2 
weeks of June (Lyman et al. 2011, p. 48), a time period when black 
pinesnakes are known to breed (Lyman et al. 2012, p. 42). In the study 
conducted by Baxley (2007, p. 83) on De Soto NF, 2 of the 8 snakes 
monitored with radio-transmitters were found dead on paved roads. This 
is an especially important issue on these public lands because the best 
remaining black pinesnake populations are concentrated there. It 
suggests that population declines may be due in part to adult mortality 
in excess of annual recruitment (Baxley and Qualls 2009, p. 290). 
Additional support for the threat of fragmentation by roads is 
presented by Steen et al. (2012, p. 1092) who suggested that their 
modelling study of habitat loss and degradation in snakes provided 
evidence that fragmentation by roads may be an impediment to 
maintaining viable populations of pinesnakes.
    Exotic plant species degrade habitat for wildlife. In the 
Southeast, longleaf pine forest associations are susceptible to 
invasion by the exotic cogongrass (Imperata cylindrica), which may 
rapidly encroach into areas undergoing habitat restoration, and is very 
difficult to eradicate once it has become established, requiring 
aggressive control with herbicides (Yager et al. 2010, pp. 229-230). 
Cogongrass displaces native grasses, greatly reducing foraging areas, 
and forms thick mats so dense that ground-dwelling wildlife has 
difficulty traversing them (DeBerry and Pashley 2008, p. 74).
    In many parts of Louisiana, Mississippi, and Alabama, there is a 
lack of understanding of the importance of snakes to a healthy 
ecosystem. Snakes are often killed intentionally when they are 
observed, and dead pinesnakes have been found that were shot (Duran 
1998b, p. 34). Lyman et al. (2008, p. 34) and Duran (1998b, p. 34) both 
documented finding dead black pinesnakes that were intentionally run 
over, as evidenced by vehicle tracks that went off the road in vicinity 
of dead snakes. In addition, in one of these instances (Lyman et al. 
2008, p. 34), footprints were observed going from the vicinity of the 
truck to the snake's head, which had been intentionally crushed. As 
development pressures mount on remaining black pinesnake habitat, 
human-snake interactions are expected to increase, which in turn is 
expected to increase mortality, especially of adults.

[[Page 60485]]

Questionnaires have shown that snakes are more likely to be 
intentionally run over than any other animal (Langley et al. 1989, p. 
43), and black pinesnakes represent a large target as they attempt to 
cross roads, which may increase the frequency of deliberate killing 
(Whitaker and Shine 2000, p. 121).
    On many construction project sites, erosion control blankets are 
used to lessen impacts from weathering, secure newly modified surfaces, 
and maintain water quality and ecosystem health. However, this 
polypropylene mesh netting (also often utilized for bird exclusion) has 
been documented as being an entanglement hazard for many snake species, 
causing lacerations and sometimes mortality (Stuart et al. 2001, pp. 
162-163; Barton and Kinkead 2005, p. 34A; Kapfer and Paloski 2011, p. 
1). This netting often takes years to decompose, creating a long-term 
hazard to snakes, even when the material has been discarded (Stuart et 
al. 2001, p. 163). Although no known instance of injury or death from 
this netting has been documented for black pinesnakes, it has been 
demonstrated to have negative impacts on other terrestrial snake 
species of all sizes and thus poses a potential threat to the black 
pinesnake when used in its habitat.
    Duran (1998b, p. 36) suggested that reproductive rates of wild 
black pinesnakes may be low, based on failure to detect either nests or 
mating behaviors as observed during his studies. This observation has 
not been corroborated in the literature for other Pituophis species; 
however, if low reproductive rates were common, it would inhibit 
conservation and recovery.
    Random environmental events may also play a part in the decline of 
the black pinesnake. Two black pinesnakes were found dead on the De 
Soto NF during drought conditions of mid-summer and may have succumbed 
due to drought-related stress (Baxley 2007, p.41).
    In summary, a variety of natural or manmade factors currently 
threaten the black pinesnake. Fire suppression has been considered a 
primary reason for degradation of the longleaf pine ecosystem; however, 
invasive species such as cogongrass also greatly reduce the habitat 
quality for the black pinesnake. Isolation of populations beyond the 
dispersal range of the subspecies is a serious threat due to the 
fragmentation of available habitat. The high percentage of radio-
tracked black pinesnakes killed while trying to cross roads supports 
our conclusion that this is a serious threat, while human attitudes 
towards snakes represent another source of mortality. Stochastic 
threats such as drought have the potential to threaten black pinesnake 
populations, especially considering the possibility of more drastic 
thermal extremes due to climate change, and the suspected low 
reproductive rate of the subspecies could exacerbate other threats and 
limit population viability. Overall, the threats under Factor E may act 
in combination with threats listed above under Factors A through D and 
increase their severity.

Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the black pinesnake. The black pinesnake is considered extirpated 
from Louisiana and three counties in Mississippi. Threats to the 
remaining black pinesnake populations exist primarily from two of the 
five threat factors (Factors A and E); however, predation by fire ants 
and urban predators (Factor C), and limitations of existing laws and 
regulations (Factor D) also pose lower-magnitude threats to the 
subspecies. Potential threats such as snake fungal disease (Factor C) 
and entanglement in erosion control blankets (Factor E) represent 
documented sources of mortality in other snake species, but there is no 
evidence yet that these have caused mortality in black pinesnakes.
    Threats also occur in combination, resulting in synergistically 
greater effects. Threats of habitat loss and degradation (Factor A) 
represent primary threats to the black pinesnake. While habitat 
restoration efforts are beginning to reverse the decline of the 
longleaf pine forest in parts of the southeastern United States, most 
of the black pinesnake's original habitat has been either converted 
from forests to other uses or is highly fragmented. Today, the longleaf 
pine ecosystem occupies less than 4 percent of its historical range, 
and the black pinesnake has been tied directly to this ecosystem. Much 
of the habitat outside of the De Soto National Forest in Mississippi 
(the core of the range) has become highly fragmented, and populations 
on these lands appear to be small and isolated on islands of suitable 
longleaf pine habitat (Duran 1998a, p. 17; Barbour 2009, pp. 6-13).
    A habitat suitability study of all historical sites for the black 
pinesnake estimated that this subspecies likely no longer occurs in an 
estimated 60 percent of historical population segments. It is estimated 
that only 11 populations of black pinesnakes are extant today, of which 
about a third are located on isolated patches of longleaf pine habitat 
that continue to be degraded due to fire suppression and fragmentation 
(Factor E), incompatible forestry practices, and urbanization.
    Threats under Factor E include fire suppression; roads; invasive 
plant species, such as cogongrass; random environmental events, such as 
droughts; and intentional killing by humans. Fire suppression and 
invasive plants result in habitat degradation. Roads surround and 
traverse the upland ridges, which are primary habitat for the black 
pinesnake, and these roads cause further fragmentation of the remaining 
habitat. In addition, roads also increase the rate of human-snake 
interactions, which likely result in the death of individual snakes. 
Vehicles travelling these roads cause the deaths of a substantial 
number of snakes. These threats in combination lead to an increased 
chance of local extirpations by making populations more sensitive to 
genetic, demographic, and environmental variability. This is especially 
true of populations on the periphery of the range, where smaller 
populations are considerably more vulnerable to the documented 
contraction of the longleaf pine ecosystem, and where stochastic events 
are more likely to cause further restrictions of the range of the black 
pinesnake.
    Habitat loss has been extensive throughout the black pinesnake's 
range, and the remaining habitat has been fragmented into primarily 
small patches with barriers to dispersal between them, creating 
reproductively isolated individuals or populations. The inadequacy of 
laws and regulations protecting against habitat loss contributes to 
increases in urbanization and further fragmentation. Urbanization 
results in an increased density of roads, intensifying the potential 
for direct mortality of adult snakes and reductions in population 
sizes. Reductions in habitat quality and quantity have synergistic 
effects that may eventually cause localized extirpations. Threats to 
the black pinesnake, working individually or in combination, are 
ongoing and significant and have resulted in curtailment of the range 
of the subspecies.
    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species ``that is likely to 
become endangered throughout all or a significant portion of its range 
within the foreseeable future.'' We find that the black pinesnake meets 
the definition of a threatened species

[[Page 60486]]

based on the immediacy, severity, and scope of the threats described 
above.
    We find that endangered status is not appropriate for the black 
pinesnake because, while we found the threats to the subspecies to be 
significant and rangewide, we believe it is unlikely that the threats 
will act on the subspecies in a way that place the subspecies in danger 
of extinction throughout all or a significant portion of its range. 
About half of the remaining black pinesnake populations occur primarily 
on public lands that are at least partially managed to protect 
remaining longleaf pine habitat. Management efforts on those lands 
specifically targeting listed longleaf pine specialists, such as the 
gopher tortoise and red-cockaded woodpecker, should benefit the black 
pinesnake as well, especially if measures are employed to protect 
belowground refugia. Additionally, the 5,735 ac (2,321 ha) of suitable 
pinesnake habitat covered by the Camp Shelby INRMP are under a 
conservation plan whose objectives include specifically protecting 
black pinesnake microhabitats and increasing awareness of the human 
impacts to rare wildlife. Thus, although there is a general decline in 
the overall range of the subspecies and its available habitat, range 
contraction is not severe enough to indicate imminent extinction 
because of these existing efforts on public land and other ongoing 
restoration activities. Therefore, on the basis of the best available 
scientific and commercial information, we are listing the black 
pinesnake as threatened in accordance with sections 3(20) and 4(a)(1) 
of the Act.

Significant Portion of the Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is endangered or threatened throughout all or a 
significant portion of its range. Because we have determined that black 
pinesnake is threatened throughout all of its range, no portion of its 
range can be ``significant'' for purposes of the definitions of 
``endangered species'' and ``threatened species.'' See the Final Policy 
on Interpretation of the Phrase ``Significant Portion of Its Range'' in 
the Endangered Species Act's Definitions of ``Endangered Species'' and 
``Threatened Species'' (79 FR 37578; July 1, 2014).

Available Conservation Measures

    Other conservation measures provided to species listed as 
endangered or threatened under the Act include recognition, recovery 
actions, requirements for Federal protection, and prohibitions against 
certain practices. Recognition through listing results in public 
awareness, and conservation by Federal, State, Tribal, and local 
agencies; private organizations; and individuals. The Act encourages 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. The protection required by Federal 
agencies and the prohibitions against certain activities are discussed, 
in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan identifies site-
specific management actions that set a trigger for review of the five 
factors that control whether a species remains endangered or may be 
downlisted or delisted, and methods for monitoring recovery progress. 
Recovery plans also establish a framework for agencies to coordinate 
their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (composed of species 
experts, Federal and State agencies, nongovernmental organizations, and 
stakeholders) are often established to develop recovery plans. When 
completed, the recovery outline, draft recovery plan, and the final 
recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Mississippi Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Following publication of this final listing rule, funding for 
recovery actions will be available from a variety of sources, including 
Federal budgets, State programs, and cost share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the States of Alabama, 
Louisiana, and Mississippi would be eligible for Federal funds to 
implement management actions that promote the protection or recovery of 
the black pinesnake. Information on our grant programs that are 
available to aid species recovery can be found at http://www.fws.gov/grants.
    Please let us know if you are interested in participating in 
recovery efforts for the black pinesnake. Additionally, we invite you 
to submit any new information on this subspecies whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is listed as an endangered or 
threatened species and with respect to its critical habitat, if any is 
designated. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402. If a species is 
listed subsequently, section 7(a)(2) of the Act requires Federal 
agencies to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of the species or 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with the Service.
    Federal agency actions within the subspecies' habitat that may 
require conference or consultation or both as described in the 
preceding paragraph include management and any other landscape-altering 
activities on Federal lands administered by the Forest Service or on 
National Wildlife Refuges

[[Page 60487]]

managed by the Service; issuance of section 404 Clean Water Act (33 
U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers; 
construction and maintenance of gas pipeline and power line rights-of-
way by the Federal Energy Regulatory Commission; construction and 
maintenance of roads or highways by the Federal Highway Administration; 
land management practices supported by programs administered by the 
U.S. Department of Agriculture; Environmental Protection Agency 
pesticide registration; and projects funded through Federal loan 
programs, which may include, but are not limited to, roads and bridges, 
utilities, recreation sites, and other forms of development.

4(d) Rule

    Under section 4(d) of the Act, the Service has discretion to issue 
regulations that we find necessary and advisable to provide for the 
conservation of threatened wildlife. We may also prohibit by regulation 
with respect to threatened wildlife any act prohibited by section 
9(a)(1) of the Act for endangered wildlife. For the black pinesnake, 
the Service has developed a 4(d) rule that is tailored to the specific 
threats and conservation needs of this subspecies. Exercising this 
discretion, the Service has developed a 4(d) rule containing all the 
general prohibitions and exceptions to those prohibitions; these are 
found at 50 CFR 17.31 and 50 CFR 17.32. However, as a means to promote 
conservation efforts on behalf of the black pinesnake, we are 
finalizing a 4(d) rule for this subspecies that modifies the standard 
protection for threatened wildlife found at 50 CFR 17.31. In the case 
of a 4(d) rule, the general regulations (50 CFR 17.31 and 17.71) 
applying most prohibitions under section 9 of the Act to threatened 
species do not apply to that species, and the 4(d) rule contains the 
prohibitions necessary and advisable to conserve that species.
    As discussed in the Summary of Factors Affecting the Species 
section of this rule, the primary threat to this subspecies is the 
continuing loss and degradation of the open pine forests habitat (e.g., 
the longleaf pine ecosystem), which requires active management to 
ensure appropriate habitat conditions are present. Therefore, for the 
black pinesnake, the Service has determined that exemptions authorized 
under section 4(d) of the Act are appropriate to promote conservation 
of this subspecies. Foremost in the degradation of this habitat is the 
decline or absence of prescribed fire, as fire is the primary source of 
historical disturbance and maintenance, reduces mid-story and 
understory hardwoods, and promotes abundant native herbaceous 
groundcover in the natural communities of the longleaf pine ecosystem 
where the black pinesnake normally occurs. We recognize that forest 
management activities such as thinning, reforestation and 
afforestation, mid-story and understory vegetation management, and 
final harvest (particularly in stands with undesirable conditions) are 
often needed to maintain and/or restore forests to the conditions that 
are preferable to black pinesnakes. The primary habitat features that 
require protection in this ecosystem are the burned-out or naturally 
decayed pine stump holes that are heavily utilized by black pinesnakes, 
in association with the development of the herbaceous plant community 
that provides habitat and forage for prey. Therefore, activities 
causing significant subsurface disturbance (like those listed below 
under 3(b)) will not be exempted as these actions are detrimental to 
maintenance and development of stump holes and root channels critical 
to this subspecies. Another factor affecting the integrity of this 
ecosystem is the infestation of invasive plants, particularly 
cogongrass. Activities such as prescribed burning and invasive weed 
control, as well as forest management activities associated with 
restoring and maintaining the natural habitat to meet the needs of the 
black pinesnake, positively affect pinesnake habitat and provide an 
overall conservation benefit to the subspecies.
Provisions of the 4(d) Rule
    See Summary of Changes to the Proposed Rule, above, for changes to 
the 4(d) rule based on information we received during the public 
comment period.
    This 4(d) rule exempts from the general prohibitions at 50 CFR 
17.31 take incidental to the following activities when conducted within 
habitats currently or historically occupied by the black pinesnake:
    (1) Prescribed burning, including all fire break establishment and 
maintenance actions, as well as actions taken to control wildfires.
    (2) Herbicide application for invasive plant species control, site-
preparation, and mid-story and understory woody vegetation control. All 
exempted herbicide applications must be conducted in a manner 
consistent with Federal law, including Environmental Protection Agency 
label restrictions; applicable State laws; and herbicide application 
guidelines as prescribed by herbicide manufacturers.
    (3) All forest management activities that maintain lands in a 
forested condition, except for: (a) Conversion of longleaf-pine-
dominated forests (>51 percent longleaf in the overstory) to other 
forest cover types or land uses; or (b) those activities causing 
significant subsurface disturbance, including, but not limited to, 
shearing, wind-rowing, stumping, disking (except during fire break 
creation or maintenance), root-raking, and bedding.
    We believe these actions and activities, while they may have some 
minimal level of harm or temporary disturbance to the black pinesnake, 
are not expected to adversely affect the subspecies' conservation and 
recovery efforts. They will have a net beneficial effect on the 
subspecies. When practicable and to the extent possible, the Service 
encourages managers to conduct the activities listed above in a manner 
to: Maintain suitable black pinesnake habitat in large tracts; minimize 
ground and subsurface disturbance; promote a diverse, abundant native 
herbaceous groundcover; and allow for the natural decay or burning of 
pine stumps. It should be noted that harvest of longleaf pine (and 
other species) is included in the exemption, as long as the longleaf 
pine forests are not converted to other forest cover types. Should 
landowners undertake activities in these areas (e.g., such as 
converting from longleaf to loblolly) that are not covered by the 
exemptions above and are likely to result in take (as described below), 
they would need to consult with the Service to find ways to minimize 
impacts to the subspecies before proceeding with the activity.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.32. With regard to 
threatened wildlife, a permit may be issued for the following purposes: 
For scientific purposes, to enhance the propagation or survival of the 
subspecies, for economic hardship, for zoological exhibition, for 
educational purposes, and for incidental take in connection with 
otherwise lawful activities. There are also certain statutory 
exemptions from the prohibitions, which are found in sections 9 and 10 
of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of

[[Page 60488]]

the effect of a final listing on proposed and ongoing activities within 
the range of a listed species. Based on the best available information, 
the following activities may potentially result in a violation of 
section 9 the Act; this list is not comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the black pinesnake, including 
import or export across State lines and international boundaries, 
except for properly documented antique specimens of these taxa at least 
100 years old, as defined by section 10(h)(1) of the Act.
    (2) Introduction of nonnative species that compete with or prey 
upon the black pinesnake.
    (3) Unauthorized destruction or modification of occupied black 
pinesnake habitat (e.g., stumping, root raking, bedding) that results 
in significant subsurface disturbance or the destruction of pine stump 
holes and their associated root systems used as refugia by the black 
pinesnake, or that impairs in other ways the subspecies' essential 
behaviors such as breeding, feeding, or sheltering; and conversion of 
occupied longleaf-pine-dominated forests (>51 percent of longleaf in 
the overstory) to other forest cover types or land uses.
    (4) Unauthorized use of insecticides and rodenticides that could 
impact small mammal prey populations, through either unintended or 
direct impacts within habitat occupied by black pinesnakes.
    (5) Actions, intentional or otherwise, that would result in the 
destruction of eggs or cause mortality or injury to hatchling, 
juvenile, or adult black pinesnakes.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Mississippi 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). 
We encourage any landowner who is concerned about potential take of the 
pinesnake on their property from an action that is not covered under 
the 4(d) rule to consult with the Service on conservation measures that 
would avoid take or the process for obtaining an incidental take permit 
under a safe harbor agreement or habitat conservation plan.

Required Determinations

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

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. There are no tribal lands located 
within the range of the subspecies.

References Cited

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

Authors

    The primary authors of this final rule are the staff members of the 
Mississippi Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


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


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                   Vertebrate
-------------------------------------------------------                       population  where                                   Critical     Special
                                                           Historic range       endangered or          Status      When listed    habitat       rules
           Common name               Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
             Reptiles
 
                                                                      * * * * * * *
Pinesnake, black.................  Pituophis            U.S.A. (AL, LA, MS)  Entire.............  T                        861           NA     17.42(h)
                                    melanoleucus
                                    lodingi.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 60489]]


0
3. Amend Sec.  17.42 by adding paragraph (h) to read as follows:


Sec.  17.42  Special rules--reptiles.

* * * * *
    (h) Black pinesnake (Pituophis melanoleucus lodingi).
    (1) Prohibitions. Except as noted in paragraph (h)(2) of this 
section, all prohibitions and provisions of Sec. Sec.  17.31 and 17.32 
apply to the black pinesnake.
    (2) Exemptions from prohibitions. Incidental take of the black 
pinesnake will not be considered a violation of section 9 of the Act if 
the take results from:
    (i) Prescribed burning, including all fire break establishment and 
maintenance actions, as well as actions taken to control wildfires.
    (ii) Herbicide application for invasive plant species control, 
site-preparation, and mid-story and understory woody vegetation 
control. All exempted herbicide applications must be conducted in a 
manner consistent with Federal law, including Environmental Protection 
Agency label restrictions; applicable State laws; and herbicide 
application guidelines as prescribed by herbicide manufacturers.
    (iii) All forest management activities that maintain lands in a 
forested condition, except for:
    (A) Conversion of longleaf-pine-dominated forests (>51 percent 
longleaf in the overstory) to other forest cover types or land uses; 
and
    (B) Those activities causing significant subsurface disturbance, 
including, but not limited to, shearing, wind-rowing, stumping, disking 
(except during fire break creation or maintenance), root-raking, and 
bedding.
* * * * *

    Dated: September 28, 2015.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2015-25270 Filed 10-5-15; 8:45 am]
 BILLING CODE 4333-15-P