Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules 37343

970.5204–17 [Removed and Reserved]

10. Section 970.5204–17, Political

activity cost prohibition is removed and

reserved.

11. Section 970.5204–31 is amended

by revising the introductory paragraph

of clause paragraph (h) and adding

clause paragraph (m) to read as follows:

970.5204–31 Insurance-litigation and

claims.

* * * * *

(h) In addition to the cost reimbursement

limitations contained in FAR part 31, as

supplemented by DEAR 970.31, and

notwithstanding any other provision of this

contract, the contractor’s liabilities to third

persons, including employees but excluding

costs incidental to worker’s compensation

actions, (and any expenses incidental to such

liabilities, including litigation costs, counsel

fees, judgments and settlements) shall not be

reimbursed if such liabilities were caused by

contractor managerial personnel:

* * * * *

(m) Reasonable litigation and other legal

expenses are allowable when incurred in

accordance with the DOE approved

contractor legal management procedures

(including cost guidelines) as such

procedures may be revised from time to time,

and if not otherwise made unallowable by

law or the provisions of this contract.

970.5204–61 [Removed and Reserved]

12. Section 970.5204–61, Cost

prohibitions related to legal and other

proceedings is removed and reserved.

970.5204–84 [Removed and Reserved]

13. Section 970.5204–84, Waiver of

limitations on severance payments to

foreign nationals, is removed and

reserved.

14. Section 970.5204–XX is added to

read as follows:

970.5204–XX Penalties for

unallowable costs.

As prescribed in 970.4207–3 use the

following clause:

Penalties for unallowable costs (APR 2000)

(a) Contractors which include unallowable

cost in a submission for settlement for cost

incurred, may be subject to penalties.

(b) If, during the review of a submission for

settlement of cost incurred, the contracting

officer determines that the submission

contains an expressly unallowable cost or a

cost determined to be unallowable prior to

the submission, the contracting officer shall

assess a penalty.

(c) Unallowable costs are either expressly

unallowable or determined unallowable.

(1) An expressly unallowable cost is a

particular item or type of cost which, under

the express provisions of an applicable law,

regulation, or this contract, is specifically

named and stated to be unallowable.

(2) A cost determined unallowable is one

which, for that contractor,

(i) Was subject to a contracting officer’s

final decision and not appealed;

(ii) The Department’s Board of Contract

Appeals or a court has previously ruled as

unallowable; or

(iii) Was mutually agreed to be

unallowable.

(d) If the contracting officer determines

that a cost submitted by the contractor in its

submission for settlement of cost incurred is:

(1) Expressly unallowable, then the

contracting officer shall assess a penalty in

an amount equal to the disallowed cost

allocated to this contract plus interest on the

paid portion of the disallowed cost. Interest

shall be computed from the date of

overpayment to the date of repayment using

the interest rate specified by the Secretary of

the Treasury pursuant to Public Law 92–41

(85 Stat. 97); or

(2) Determined unallowable, then the

contracting officer shall assess a penalty in

an amount equal to two times the amount of

the disallowed cost allocated to this contract.

(e) The contracting officer may waive the

penalty provisions when:

(1) The contractor withdraws the

submission before the formal initiation of an

audit of the submission and submits a

revised submission;

(2) The amount of the unallowable costs

allocated to covered contracts is $10,000 or

less; or

(3) The contractor demonstrates to the

contracting officer’s satisfaction that:

(i) It has established appropriate policies,

personnel training, and an internal control

and review system that provides assurances

that unallowable costs subject to penalties

are precluded from the contractor’s

submission for settlement of costs; and

(ii) The unallowable costs subject to the

penalty were inadvertently incorporated into

the submission.

(End of clause)

[FR Doc. 00–14866 Filed 6–13–00; 8:45 am]

BILLING CODE 6450–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AF41

Endangered and Threatened Wildlife

and Plants; Proposal to List the

Chiricahua Leopard Frog as

Threatened With a Special Rule

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), propose

threatened status pursuant to the

Endangered Species Act of 1973, as

amended (Act), for the Chiricahua

leopard frog (Rana chiricahuensis). The

Chiricahua leopard frog is now absent

from many historical localities and

numerous mountain ranges, valleys, and

drainages within its former range. In

areas where it is still present,

populations are often few, small, and

widely scattered. Known threats include

habitat alteration, destruction, and

fragmentation, predation by nonnative

organisms, and disease. Habitat loss

results from water diversions, dredging,

livestock grazing, mining, degraded

water quality, and groundwater

pumping. Problems associated with

small population numbers and size also

threaten the species. Evidence suggests

that adverse effects from water-borne

contaminants may also threaten this

species. This proposed rule, if made

final, would implement Federal

protection to this species and provide

funding for development and

implementation of recovery actions.

DATES: We must receive comments from

all interested parties by September 12,

2000. We must receive public hearing

requests by July 31, 2000.

ADDRESSES: Send comments and

materials to the Field Supervisor,

Arizona Ecological Services Field

Office, U.S. Fish and Wildlife Service,

2321 West Royal Palm Road, Suite 103,

Phoenix, Arizona 85021–4951.

Comments and information received

will be available for public inspection,

by appointment, during normal business

hours at the above address.

FOR FURTHER INFORMATION CONTACT: Jim

Rorabaugh, Herpetologist, at the above

address (telephone 602/640–2720;

facsimile 602/640–2730).

SUPPLEMENTARY INFORMATION:

Background

Leopard frogs (Rana pipiens

complex), long considered to consist of

a few highly variable species, are now

recognized as a diverse assemblage of

more than two dozen species (Hillis et

al. 1983), with many species described

in the last 20 years. Mecham (1968)

recognized two distinct variations of

‘‘Rana pipiens’’ in the White Mountains

of Arizona. One of these, referred to as

the ‘‘southern form,’’ was depicted as a

stocky frog with raised folds down both

sides of the back (dorsolateral folds) that

were interrupted and deflected medially

towards the rear. The other form

matched previous descriptions of Rana

pipiens. Based on morphology, mating

calls, and genetic analyses

(electrophoretic comparisons of blood

protein samples), Platz and Platz (1973)

demonstrated that at least three distinct

forms of leopard frogs occurred in

Arizona, including the southern form.

This southern form was subsequently

described as the Chiricahua leopard frog

(Rana chiricahuensis) (Platz and

Mecham 1979).

37344 Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules

This new species was distinguished

from other members of the Rana pipiens

complex by a combination of characters,

including a distinctive pattern on the

rear of the thigh consisting of small,

raised, cream-colored spots or tubercles

on a dark background, dorsolateral folds

that were interrupted and deflected

medially, stocky body proportions,

relatively rough skin on the back and

sides, and often green coloration on the

head and back (Platz and Mecham

1979). The species also has a distinctive

call consisting of a relatively long snore

of 1 to 2 seconds in duration (Davidson

1996, Platz and Mecham 1979). Snoutvent lengths of adults range from

approximately 54 to 139 millimeters

(mm) (2.1 to 5.4 inches (in)) (Stebbins

1985, Platz and Mecham 1979). The

Ramsey Canyon leopard frog (Rana

subaquavocalis) is similar in

appearance to the Chiricahua leopard

frog, but it often grows to a larger size

and has a distinct call that is typically

given under water (Platz 1993).

Recent articles in the scientific

literature report the extirpation and

extinction of amphibians in many parts

of the world (Berger et al. 1998, Lips

1998, Laurence et al. 1996, Vial and

Saylor 1993, Pechmann et al. 1991,

Blaustein and Wake 1990). Frogs in the

family Ranidae, which includes the

Chiricahua leopard frog, are particularly

affected (Sredl et al. 1997, Sredl 1993,

Bradford 1991, Clarkson and Rorabaugh

1989, Hayes and Jennings 1986, Corn

and Fogleman 1984). Although these

population declines are thought to

result in many cases from habitat loss,

predation by introduced predators, or

other factors, populations are sometimes

extirpated from seemingly pristine

habitats or from areas where no obvious

cause of decline can be identified

(Meyer and Mikesic 1998, Sredl 1993,

Drost and Fellers 1993, Corn and

Fogleman 1984, Hines et al. 1981).

Although natural long-term fluctuations

in the size of populations and the

number of populations within a species

are often not well studied, increased

extirpation rates and in some cases

apparent extinction, coupled with

recent declining trends in the status of

many amphibian species is alarming

and may represent a very recent and

rapid global decline of an entire class of

vertebrates (Blaustein et al. 1994, Wake

1991).

Observers have speculated that these

declines may have resulted from one or

more factors, including habitat

disturbance, predation by introduced

predators such as nonnative fish and

amphibians, disease, drought,

pesticides, acid rain, heavy metals,

increased ultraviolet radiation due to

atmospheric ozone depletion, overcollection, natural events such as severe

storms or floods, global warming or

other climatic events, and as a result of

the dynamics of small populations and

groups of small populations or

metapopulations (Berger et al. 1998,

Lips 1998, Lind et al. 1996, Rosen et al.

1996, 1994; Hale et al. 1995, Blaustein

et al. 1994, Sredl and Howland 1994,

Pounds and Crump 1994, Sredl 1993,

Bradford 1991, Wyman 1990, Clarkson

and Rorabaugh 1989, Corn and

Fogleman 1984, Baxter and Meyer 1982,

Dimmitt 1979).

The Chiricahua leopard frog is an

inhabitant of cienegas (mid-elevation

wetland communities often surrounded

by arid environments), pools, livestock

tanks, lakes, reservoirs, streams, and

rivers at elevations of 1,000 to 2,710

meters (m) (3,281 to 8,890 feet (ft)) in

central and southeastern Arizona; westcentral and southwestern New Mexico;

and in Mexico, northern Sonora and the

Sierra Madre Occidental of Chihuahua

(Sredl et al. 1997, Degenhardt et al.

1996, McCranie and Wilson 1987, Platz

and Mecham 1979). The taxonomic

status of frogs in southern Chihuahua

and possibly Durango is in question.

The species has been reported from

southern Chihuahua and Durango

(Hillis et al. 1983, Platz and Mecham

1984, 1979); however, Webb and Baker

(1984) concluded that frogs from

southern Chihuahua were not

Chiricahua leopard frogs, as expected.

The range of the species is divided into

two parts, including—(1) a southern

group of populations (the majority of the

species’ range) located in mountains

and valleys south of the Gila River in

southeastern Arizona, extreme

southwestern New Mexico, and Mexico;

and (2) northern montane populations

in west central New Mexico and along

the Mogollon Rim in central and eastern

Arizona (Platz and Mecham 1979).

There are historical records in Pima,

Santa Cruz, Cochise, Graham, Apache,

Greenlee, Gila, Coconino, Navajo, and

Yavapai counties, Arizona; and Catron,

Grant, Hidalgo, Luna, Soccoro, and

Sierra counties, New Mexico (Sredl et

al. 1997, Degenhardt et al. 1996).

Historical records for the Chiricahua

leopard frog also exist from several sites

in northern and central Chihuahua,

northern Sonora, and possibly southern

Chihuahua and Durango (Platz and

Mecham 1984, 1979; Webb and Baker

1984; Hillis et al. 1983).

Male Chiricahua leopard frogs exhibit

variable development of vestigial (small,

nonfunctional) oviducts. Vestigial

oviducts are absent in most specimens

from the northern populations but are

generally present in specimens from

southern populations (Platz and

Mecham 1979). This and other

characteristics that differ regionally

throughout the range of the species

suggest genetic differentiation. This

differentiation is being investigated and

may result in a description of the

northern populations as a separate

species from the southern populations

(James Platz, Creighton University, pers.

comm. 1994). If the species is split into

two distinct taxa, fewer populations

would exist within each taxon.

Chiricahua leopard frogs were either

collected or observed at 212 localities in

Arizona (B. Kuvlesky, Buenos Aires

National Wildlife Refuge, pers. comm.

1997; Terry Myers, Apache-Sitgreaves

National Forest, pers. comm. 1997;

Sredl et al. 1997; Rosen et al. 1996;

Snyder et al. 1996; C. Schwalbe,

University of Arizona, pers. comm.

1995; R. Zweifel, Portal, Arizona, pers.

comm. 1995; Hale 1992; Clarkson and

Rorabaugh 1989; Fish and Wildlife

Service files, Phoenix, Arizona). In New

Mexico, the species was either collected

or observed at 170 localities (Jennings

1995; Randy Jennings, Western New

Mexico University, pers. comm. 1999;

Charles Painter, New Mexico Game and

Fish Department, pers. comm. 1999).

Eleven historical localities were listed

by Platz and Mecham (1979) in Mexico,

mostly from the eastern base and

foothills of the Sierra Madre Occidental

in Chihuahua and Durango, and one site

in northern Sonora, Mexico. Hillis et al.

(1983) list another locality from

Durango. However, the presence of

Chiricahua leopard frogs in the Sierra

Madre Occidental of southern

Chihuahua was questioned by Webb

and Baker (1984). Frogs at a locality on

the Sonora-Chihuahua border have been

tentatively identified as Chiricahua

leopard frogs (Holycross 1998). Some

museums still have many southwestern

leopard frogs catalogued as Rana

pipiens. Once these specimens have

been reexamined, additional historical

localities for Rana chiricahuensis may

result. Also, frogs observed at some

localities, which may have been Rana

chiricahuensis, were not positively

identified.

Many collections of Chiricahua

leopard frogs were made before 1980

(Jennings 1995; Platz and Mecham 1979;

Frost and Bagnara 1977; Mecham 1968).

Recent surveys to document the status

and distribution of the species were

conducted primarily from the mid1980’s to the present (Sredl et al. 1997,

1995, 1994, 1993; Rosen et al. 1996;

Fernandez and Bagnara 1995; Jennings

1995; Rorabaugh et al. 1995; Rosen

1995; Zweifel 1995; Sredl and Howland

1994, 1992; Hale 1992; Scott 1992;

Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules 37345

Wood 1991; Clarkson and Rorabaugh

1989; Rosen and Schwalbe 1988). These

surveys were summarized by Jennings

(1995) for New Mexico and Sredl et al.

(1997) for Arizona. In 1995, Jennings

reported Chiricahua leopard frogs at 11

sites in New Mexico. An additional 16

populations have been found since 1995

(R. Jennings, pers. comm. 1999, C.

Painter, pers. comm. 1999), for a total of

27. Twenty-two of these occur north of

Interstate 10 (northern populations), and

five are in the southwestern corner of

the state (southern populations). Sredl

et al. (1997) reported that during 1990–

1997 Chiricahua leopard frogs were

found at 61 sites in southeastern

Arizona (southern populations) and 15

sites in central and east-central Arizona

(northern populations). As a means to

make the Arizona and New Mexico

status information more comparable, the

number of sites at which Chiricahua

leopard frogs were observed from 1995

to the present in Arizona were tallied.

Based on available data, particularly

Sredl et al. (1997) and Rosen et al.

(1996), Chiricahua leopard frogs were

observed at 52 sites in Arizona from

1995 to the present, including 9

northern localities and 43 southern

localities.

Recent surveys of potential habitats in

Arizona are more complete than surveys

done in New Mexico. Sredl et al. (1997)

conducted 656 surveys for ranid frogs

(frogs in the family Ranidae) within the

range of the Chiricahua leopard frog in

southeastern Arizona. Rosen et al.

(1996, 1994), Hale (1992), Wood (1991),

Clarkson and Rorabaugh (1989), and

others have also surveyed wetlands in

southeastern Arizona extensively. It is

unlikely that many additional new

populations will be found there. A

greater potential exists for locating frogs

at additional localities in Arizona’s

northern region. Sredl et al. (1997)

conducted 871 surveys for ranid frogs in

the range of the northern localities, but

report that only 25 of 46 historical

Chiricahua leopard frog localities were

surveyed during 1990–1997.

Unsurveyed historical localities are

primarily located on the San Carlos and

Fort Apache Reservations, in areas that

have generally not been accessible to

State and Federal biologists. Additional

populations of Chiricahua leopard frogs

of which we are currently unaware may

occur on these tribal lands.

Of the historical localities in New

Mexico, 80 of 170 were not revisited

since frogs were last collected or

observed. Twenty-four of these

unvisited sites have imprecise locality

information that precludes locating or

revisiting them. Many others are on

private lands to which the owners have

denied access to biologists (the privately

owned Gray and Ladder ranches are

notable exceptions). As in Arizona,

potential habitat within the range of the

southern populations has been surveyed

more extensively than that of the

northern populations. From 1990–1991,

Scott (1992) conducted extensive

surveys of the Gray Ranch, which

contains much of the Chiricahua

leopard frog habitat in southwestern

New Mexico. Observations from

numerous other herpetologists were

included within his reports, and

cowboys and ranch hands were

interviewed to locate potential habitats.

Jennings (1995) surveyed other potential

habitats in southwestern New Mexico

outside of the Gray Ranch in the

Peloncillo Mountains. Other

herpetologists working in that area,

including Charles Painter (pers. comm.

1998) and Andy Holycross, Arizona

State University (pers. comm. 1997),

also worked extensively in this area.

Probably few if any unknown

populations of Chiricahua leopard frogs

occur in southwestern New Mexico.

Surveys in the northern portion of the

species’ range in New Mexico have been

less complete. Jennings (1995) believed

that the wilderness areas of the Gila

National Forest have the greatest

potential for supporting additional

extant populations and for securing an

intact metapopulation that would have

a good chance of long-term persistence.

In Mexico systematic or intensive

surveys for Chiricahua leopard frogs

were not conducted. However, it is

expected that the species almost

certainly occurs or occurred at more

than the 12 (or 13) reported localities in

Chihuahua, Sonora, and Durango (Platz

and Mecham 1979, Hillis et al. 1983,

and Holycross 1998). However, the

identity of leopard frogs in southern

Chihuahua (and perhaps Durango) is in

some question (Webb and Baker 1984).

Only one locality has been documented

in Sonora, yet populations occur or

occurred in the mountain ranges and

valleys adjacent to the Sonora border in

Arizona. Other localities probably occur

or occurred in Sonora.

The Chiricahua leopard frog is

reported absent from a majority of

historical localities. In Arizona,

Clarkson and Rorabaugh (1989) found

the species at only 2 of 36 sites that

supported Chiricahua leopard frogs in

the 1960s and 1970s. In New Mexico,

Jennings (1995) found Chiricahua

leopard frogs at 6 of 33 sites supporting

the species during the previous 11

years. Sredl and Howland (1994)

reported finding Chiricahua leopard

frogs at only 12 of 87 historical sites. In

1994, during surveys of 175 wetland

sites in southeastern Arizona, Rosen et

al. (1994) reported the Chiricahua

leopard frog was extant at 19 historical

and new sites, but was not found at 32

historical localities. Throughout

Arizona, Sredl et al. (1997) found the

species present at 21 of 109 historical

localities.

Determining whether a species is

declining based on its presence or

absence at historical sites is difficult.

Where frogs are observed at a particular

site, they are considered extant.

However, a failure to find frogs does not

necessarily indicate the species is

absent. Corn (1994) notes that leopard

frogs may be difficult to detect, museum

records do not always represent

breeding localities, collections have

occurred from marginal habitat, and

museum and literature records often

represent surveys over long periods of

time, which ignores natural processes of

geographical extinction and

recolonization. The natural processes of

extinction and recolonization may be

particularly important for the

Chiricahua leopard frog because its

habitats are often small and very

dynamic. Because the Chiricahua

leopard frog and other southwestern

leopard frogs exhibit a life history that

predisposes them to high rates of

extirpation and recolonization (Sredl

and Howland 1994), its absence from at

least some historical sites is expected.

The failure of experienced observers

to find frogs indicates that frogs are

probably absent, particularly in

relatively simple aquatic systems such

as most stock tanks and stream

segments. Howland et al. (1997)

evaluated visual encounter surveys at

five leopard frog localities. At sites with

known populations that were not dry,

frogs were detected in 93 of 100 surveys

conducted during the day from April

through October. During a drought in

1994, Rosen et al. (1996, 1994) surveyed

all known localities of the Chiricahua

leopard frog in southeastern Arizona

and other accessible waters, and

discussed locations of waters and faunal

occurrence with landowners. By

focusing on aquatic sites that did not go

dry, and through careful and often

multiple surveys at each site, the

authors were able to define distribution

at a time when aquatic faunal patterns

were clear. The authors believed that

nearly all potential habitat was

surveyed, and, if frogs were present,

they would be detectable at most sites.

Although survey data strongly suggest

that the species is absent at a high

percentage of historical sites (absent

from 76 and 82 percent of historical

sites in New Mexico and Arizona,

respectively) (Sredl et al. 1997, Jennings

37346 Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules

1995), additional analyses are warranted

to determine whether extirpations

represent natural fluctuations or longterm declines caused by human impacts

(Blaustein et al. 1994, Pechman et al.

1991).

Numerous studies indicate that

declines and extirpations of Chiricahua

leopard frogs are at least in part caused

by predation and possibly competition

by nonnative organisms, including fish

in the family Centrarchidae

(Micropterus spp., Lepomis spp.),

bullfrogs (Rana catesbeiana), tiger

salamanders (Ambystoma tigrinum

mavortium), crayfish (Oronectes virilis

and possibly others), and several other

species of fish (Fernandez and Rosen

1998, Rosen et al. 1996, 1994; Snyder et

al. 1996; Fernandez and Bagnara 1995;

Sredl and Howland 1994; Clarkson and

Rorabaugh 1989). For instance, in the

Chiricahua region of southeastern

Arizona, Rosen et al. (1996) found that

almost all perennial waters investigated

that lacked introduced predatory

vertebrates supported Chiricahua

leopard frogs. All waters except three

that supported introduced vertebrate

predators lacked Chiricahua leopard

frogs. The authors noted an alarming

expansion of nonnative predatory

vertebrates over the last 2 decades. In

the Chiricahua region, Chiricahua

leopard frogs were primarily limited to

habitats subject to drying or near drying,

such as stock tanks, which discourages

the establishment of nonnative

predatory fish and bullfrogs. These

habitats are highly dynamic and may be

marginal habitats for leopard frogs

(Rosen et al. 1994).

Additional evidence that the observed

absence of Chiricahua leopard frogs

from historical sites is not the result of

a natural phenomenon emerges from the

analyses of regional occurrence. If the

extirpation of the Chiricahua leopard

frog were a natural artifact of

metapopulation dynamics or other

population-level processes, then an

observer would not expect to find the

species absent from large portions of its

range. Rather, Chiricahua leopard frogs

might be absent from some historical

sites, but would still be found at other

new or historical sites in the region. In

New Mexico, Jennings (1995) reported

extant Chiricahua leopard frog

populations in each of the six major

drainages where the species was found

historically (Tularosa/San Francisco,

Mimbres, Alamosa/Seco/Rio Grande,

Gila, Playas, and Yaqui). However, all

six are characterized by few, mostly

small, isolated populations. Populations

in the Playas drainage are limited to two

livestock tanks. The species was not

found on the mainstem, Middle Fork,

and East Fork of the Gila River, where

the species occurred historically at

many localities.

In Arizona, the species is still extant

in all major drainages of historical

occurrence (Little Colorado, Salt, Verde,

Gila, San Pedro, Santa Cruz, Yaqui/

Bavispe, and Magdalena river

drainages), but was not found recently

in some major tributaries and/or from

river mainstems. For instance, the

species was not reported from 1995 to

the present from the following drainages

or river mainstems where it historically

occurred: White River, East Clear Creek,

West Clear Creek, Silver Creek, Tonto

Creek, Verde River mainstem, San

Francisco River, San Carlos River, upper

San Pedro River mainstem, Santa Cruz

River mainstem, Aravaipa Creek,

Babocomari River mainstem, and

Sonoita Creek. In southeastern Arizona,

no recent records (1995 to the present)

exist for the following mountain ranges

or valleys: Pinaleno Mountains,

Peloncillo Mountains, Sulphur Springs

Valley, Huachuca Mountains, and

Canelo Hills. In many of these regions,

Chiricahua leopard frogs were not found

for a decade or more despite repeated

surveys.

These apparent regional extirpations

provide further evidence that the

species is disappearing from its range.

Once extirpated from a region, natural

recolonization of suitable habitats is

unlikely to occur in the near future.

Where the species is still extant,

sometimes several small populations are

found in close proximity suggesting

metapopulations are important for

preventing regional extirpation (Sredl et

al. 1997).

Disruption of metapopulation

dynamics is likely an important factor

in regional loss of populations (Sredl et

al. 1997, Sredl and Howland 1994).

Chiricahua leopard frog populations are

often small, and habitats are dynamic,

resulting in a relatively low probability

of long-term population persistence.

However, if populations are relatively

close together and numerous, extirpated

sites can be recolonized.

Human disturbances can result in

increased rates of extinction and

decreased rates of recolonization. If the

extinction rate for a given population

exceeds the colonization rate, that

population will go extinct (Hanski

1991). Various human impacts (see

Summary of Factors Affecting the

Species) can result in increased

extinction rates and/or increased

isolation of populations within a

metapopulation with resulting

decreased colonization rates. In

addition, big rivers, lakes, and reservoirs

that once probably supported large

populations of Chiricahua leopard frogs,

and were likely stable source

populations for dispersal to smaller

sites, are almost all inhabited by

nonnative predators and are unsuitable

as habitat for this species (Sredl et al.

1997, Sredl and Howland 1994). The

currently extant smaller populations

almost certainly exhibit greater

extinction rates than these larger

populations did historically.

Rosen et al. (1996) hypothesized that

‘‘the ongoing restriction of Chiricahua

leopard frogs to shallow, marginal

habitat types means that eventually the

species will be wiped out by a drought

(see Fellers and Drost 1993, Corn and

Fogelman 1984) that it would readily

have weathered in refugia now preempted by nonnative species. Our

hypothesis clearly predicts that this

species will go extinct in southern

Arizona, and probably elsewhere, unless

appropriate action is taken.’’ In New

Mexico, Painter (1996) reported similar

findings: ‘‘Rana chiricahuensis is

rapidly disappearing from southwest

New Mexico (Jennings 1995, pers. obs.).

Unless these unexplainable trends are

quickly reversed, I expect the species to

be extirpated from 90–100 percent of its

former range in New Mexico within the

next decade * * *’’.

Previous Federal Action

Based on status information

indicating the species was recently

extirpated from historical localities

(Clarkson and Rorabaugh 1989), the

Chiricahua leopard frog was added to

the list of category 2 candidate species

with the publication of a comprehensive

Notice of Review on November 21, 1991

(56 FR 58804). We also included the

species as a category 2 candidate in the

November 15, 1994, Notice of Review

(59 FR 58982). Category 2 candidates

were those taxa for which we had some

evidence of vulnerability and threats,

but for which we lacked sufficient data

to support a listing proposal.

Beginning with our February 28,

1996, candidate notice of review (61 FR

7596), we discontinued the designation

of multiple categories of candidates, and

only those taxa meeting the definition

for former category 1 candidates are

now considered candidates for listing

purposes. Category 1 candidates were

taxa for which we had on file sufficient

information on biological vulnerability

and threats to support proposals to list

them as endangered or threatened, but

for which preparation of listing

proposals was precluded by higher

priority listing actions. In the February

28, 1996, notice, we identified the

Chiricahua leopard frog as a candidate

species.

Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules 37347

On June 10, 1998, we received a

petition dated June 4, 1998, from the

Southwest Center for Biological

Diversity to list the Chiricahua leopard

frog as endangered and to designate

critical habitat for the species. In a letter

dated July 7, 1998, we informed the

petitioner that, pursuant to the Service’s

July 1996 Petition Management

Guidance, we consider candidate

species to be under petition and covered

by a ‘‘warranted but precluded’’ finding

under section 4(b)(3)(B)(iii) of the Act.

Because listing of candidates is, by

definition, already warranted, petitions

on candidates are redundant.

Accordingly, we do not prepare 90-day

findings for petitioned candidate

species. We address the resolution of

the conservation status of the

Chiricahua leopard frog and other

candidates through the Listing Priority

Guidance.

The processing of this proposed rule

conforms with the Fiscal Year 2000

Listing Priority Guidance, published on

October 22, 1999 (64 FR 57114). The

guidance clarifies the order in which we

will process rulemakings. Highest

priority is processing emergency listing

rules for any species determined to face

a significant and imminent risk to its

well-being (Priority 1). Second priority

(Priority 2) is processing final

determinations on proposed additions

to the lists of endangered and

threatened wildlife and plants. Third

priority is processing new proposals to

add species to the lists. The processing

of administrative petition findings

(petitions filed under section 4 of the

Act) is the fourth priority. This

proposed rule is a Priority 3 action and

is being completed in accordance with

the current Listing Priority Guidance.

Peer Review

In accordance with the policy

promulgated July 1, 1994 (59 FR 34270),

we will solicit the expert opinions of at

least three appropriate and independent

specialists regarding this proposed rule.

The purpose of such review is to ensure

listing decisions are based on

scientifically sound data, assumptions,

and analyses, including input of

appropriate experts and specialists. Peer

reviewers will be mailed copies of this

proposed rule to list the Chiricahua

leopard frog as a threatened species

immediately following publication in

the Federal Register. We solicit peer

reviewers to comment during the public

comment period upon the specific

assumptions and conclusions regarding

this proposed listing. In the preparation

of the final rule, we consider all

comments received.

Summary of Factors Affecting the

Species

Section 4 of the Act and regulations

(50 CFR part 424) promulgated to

implement the listing provisions of the

Act set forth the procedures for adding

species to the Federal lists. A species

may be determined to be an endangered

or threatened species due to one or more

of the five factors described in Section

4(a)(1). These factors and their

application to the Chiricahua leopard

frog (Rana chiricahuensis Platz and

Mecham) are as follows:

A. The present or threatened

destruction, modification, or

curtailment of its habitat or range.

Riparian (in or associated with wetted

areas) and wetland communities

throughout the range of the Chiricahua

leopard frog are much altered and/or

reduced in size compared to early-to

mid-19th century conditions (Arizona

Department of Water Resources 1994;

Brown 1985; Hendrickson and Minckley

1984; Minckley and Brown 1982). Dams,

diversions, groundwater pumping,

introduction of nonnative organisms,

woodcutting, mining, urban and

agricultural development, road

construction, overgrazing, and altered

fire regimes all contributed to reduced

quality and quantity of riparian and

wetland habitat (Belsky and Blumenthal

1997; Wang et al. 1997; DeBano and

Neary 1996; Bahre 1995; Brown 1985;

Hadley and Sheridan 1995; Ohmart

1995; Stebbins and Cohen 1995;

Hendrickson and Minckley 1984;

Arizona State University 1979; Gifford

and Hawkins 1978).

Many of these changes began before

ranid frogs were widely collected or

studied in Arizona and New Mexico.

The Chiricahua leopard frog may have

been much more widely distributed in

pre-settlement times than is indicated

by historical collections. Extant

localities are generally located in stream

and river drainage headwaters, springs,

and stock tanks. However, historical

records exist for the Verde, San Pedro,

Santa Cruz, Mimbres, and Gila Rivers,

and the species is extant in the

mainstem of the San Francisco River in

New Mexico and on the Blue River in

Arizona. These findings suggest that it

may have occurred in other major

drainages, such as the mainstems of the

Salt, White, Black, and Little Colorado

Rivers. Habitat degradation, diversions,

loss or alteration of stream flows,

groundwater pumping, introduction of

nonnative organisms, and other changes

are often most apparent on these larger

drainages (Sredl et al. 1997, State of

Arizona 1990).

Although the cumulative effect of

such changes to its habitat is unknown,

the extirpation of the Chiricahua

leopard frog may have occurred in some

major drainages prior to its occurrence

being documented. These large

drainages connect many of the extant

and historical populations and may

have served as important corridors for

exchange of genetic material and as a

source of frogs for recolonization if

extirpations occurred within

populations (Sredl et al. 1997, Rosen et

al. 1996).

Beavers (Castor canadensis) likely

promoted the creation of Chiricahua

leopard frog habitat. The activities of

beavers tend to inhibit erosion and

downcutting of stream channels (Parker

et al. 1985), and ponded water behind

beaver dams is favored habitat for ranid

frogs. However, beavers were extirpated

from some areas by the late 1800s and

are still not abundant or are extirpated

from other areas where they were once

common (Hoffmeister 1986). For

example, in Arizona beavers are

extirpated from the Santa Cruz River

and, before recent reintroductions, were

extirpated from the San Pedro River.

Loss of this large mammal and the dams

it constructed likely resulted in loss of

backwater and pool habitat favored by

the Chiricahua leopard frog.

These changes occurred before

leopard frogs were widely collected;

thus, hypotheses concerning

correlations between extirpations of

beaver and Chiricahua leopard frogs

cannot be tested by comparing historical

versus extant frog populations. Where

beavers occur within the range of the

Chiricahua leopard frog today, beaver

ponds are often inhabited by nonnative

predators, such as introduced fish and

bullfrogs, that prey upon and likely

preclude colonization by Chiricahua

leopard frogs. Because nonnative

species often thrive in beaver ponds, the

presence of beavers could actually

hinder recovery of the Chiricahua

leopard frog in some systems.

Stock tanks, constructed as water

sources for livestock, are very important

habitats for the Chiricahua leopard frog

throughout its range. In some areas,

stock tanks replaced natural springs and

cienegas and provide the only suitable

habitat available to the Chiricahua

leopard frog. For instance, the only

known localities of the Chiricahua

leopard frog in the San Rafael and San

Bernardino Valleys, Fossil Creek

drainage, and in the Patagonia

Mountains of Arizona are stock tanks.

Sixty-one percent of extant Chiricahua

leopard frog localities in Arizona are

stock tanks, versus only 35 percent of

extirpated localities (Sredl and Saylor

37348 Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules

1998), suggesting Arizona populations

of this species have fared better in stock

tanks than in natural habitats. However,

this generalization may not be true for

New Mexico, where in recent years

many stock tank populations were

extirpated. Sredl and Saylor (1998) also

found that stock tanks are occupied less

frequently by nonnative predators (with

the exception of bullfrogs) than natural

sites. Therefore, a high probability exists

that the Chiricahua leopard frog would

be extirpated from many more areas if

ranchers had not built and maintained

stock tanks for livestock production.

Although stock tanks provide refugia

for frog populations and are very

important for this species, only small

populations are supported by such

tanks, and these habitats are very

dynamic. Tanks often dry out during

drought, and flooding may destroy

downstream impoundments or cause

siltation, either of which may result in

loss of aquatic habitat and extirpation of

frog populations. Periodic maintenance

to remove silt from tanks may also cause

a temporary loss of habitat. Populations

of nonnative introduced predaceous fish

and bullfrogs, although less prevalent

than in natural habitats, sometimes

become established in stock tanks and

are implicated in the decline of the

Chiricahua leopard frog (Rosen et al.

1996, 1994). Stock tanks may facilitate

spread of nonnative organisms by

providing aquatic habitats in arid

landscapes that otherwise may have

served as barriers to the spread of such

organisms. In New Mexico, stock tank

populations in some areas were

eliminated by disease (Declining

Amphibian Populations Task Force

1993).

Grazing by domestic livestock occurs

throughout the range of the Chiricahua

leopard frog. The effects of livestock

grazing on leopard frog populations are

not well studied. As discussed,

construction of tanks for livestock has

created important leopard frog habitat,

and in some cases has replaced

destroyed or altered natural wetland

habitats. A large and healthy population

of Chiricahua leopard frogs coexists

with cattle and horses on the Tularosa

River, New Mexico (Randy Jennings,

Western New Mexico University, pers.

comm. 1995).

Maintenance of viable populations of

Chiricahua leopard frogs is thought to

be compatible with well-managed

livestock grazing. However, adverse

effects to the species and its habitat may

occur under certain circumstances.

These effects to habitats include

deterioration of watersheds, erosion

and/or siltation of stream courses,

elimination of undercut banks that

provide cover for frogs, and loss of

wetland and riparian vegetation and

backwater pools (Belsky et al. 1999,

Ohmart 1995; Hendrickson and

Minckley 1984; Arizona State

University 1979). Eggs and tadpoles of

the Chiricahua leopard frog are probably

trampled by cattle on the perimeter of

stock tanks and in pools along streams.

Cattle can also contribute to degraded

water quality at stock tanks, including

elevated hydrogen sulfide

concentrations, which are toxic to frogs

(Sredl et al. 1997).

Many large impoundments or lakes

were created within the range of the

Chiricahua leopard frog for water

storage, recreation, and as a source of

hydroelectric power. Historical records

exist for the species from Luna Lake,

Nelson Reservoir, Hawley Lake, and

Rainbow Lake north of the Gila River in

Arizona; and Lake Roberts, Patterson

Lake, and Ben Lilly Lake in New

Mexico, but surveys at these sites since

1985 located no frogs (Jennings 1995,

Arizona Game and Fish Department

(AGFD) 1997). Currently, large

impoundments invariably support

populations of nonnative fish and/or

bullfrogs. Predation and possibly

competition with leopard frogs by these

introduced predators likely contributed

to the disappearance of the Chiricahua

leopard frog from reservoir habitats.

Construction and operation of

reservoirs also alter downstream flows

and can result in dramatic changes in

stream hydrology, rates of erosion and

sedimentation, riparian vegetation, and

other components of riparian

ecosystems (Johnson 1978). The effects

of these changes on Chiricahua leopard

frog populations are unknown.

However, downstream effects of such

impoundments are implicated in the

decline of other anurans (frogs and

toads), including the endangered arroyo

toad (Bufo californicus) (Service 1993)

and the foothill yellow-legged frog

(Rana boylii) (Lind et al. 1996).

On the Trinity River in California, the

extent of riparian vegetation increased

with an accompanying decrease in

sandbar habitat, of which the latter was

breeding habitat of the yellow-legged

frog. Unseasonably high flows from dam

releases also resulted in loss of entire

cohorts or age groups of larval frogs

(Lind et al. 1996). Similar effects may

occur in Chiricahua leopard frog habitat.

Water temperatures are often colder

below dams than in similar unaltered

systems (Lind et al. 1996), which may

retard development of frog eggs and

larvae (Stebbins and Cohen 1995). Lack

of scouring flood flows below dams may

also create relatively stable pool habitat

with established vegetation that favors

establishment of bullfrogs (Lind et al.

1996). Dispersal of nonnative fish from

impoundments to either downstream or

upstream reaches may have resulted in

further adverse effects to frog

populations.

Only a few extant or historical

Chiricahua leopard frog localities are

thought to be directly affected by

current mining operations. Active

mining occurs in California Gulch,

Pajarito Mountains, Arizona, but is

limited to a short reach of the drainage.

The recently proposed Gentry Iron Mine

may be located within 1.6 km (1.0 mi)

of two Chiricahua leopard frog

populations on the Tonto National

Forest, Arizona. The resulting effects of

the proposed mining activities on these

populations are uncertain at this time,

but may include changes in water

quality and flow rates. Populations of

Chiricahua leopard frog northeast of

Hurley, Grant County, New Mexico,

may also be affected by mining.

Evidence of mining can be found at or

near many other localities, but few

mines are currently active and most do

not directly affect the wetland and

riparian habitats occupied by the

species. Although mining activities

were more widespread historically and

may have constituted a greater threat in

the past, the mining of sand and gravel,

iron, gold, copper, or other materials

remains a potential threat to the habitat

of the Chiricahua leopard frog. In

addition, as noted in Factor C of this

section, mining also has indirect

adverse effects to this species.

Fire frequency and intensity in the

mountain ranges of southeastern

Arizona and southwestern New Mexico

are much altered from historic

conditions. Before 1900, surface fires

generally occurred at least once per

decade in montane forests with a pine

component. Beginning about 1870–

1900, these frequent ground fires ceased

to occur due to intensive livestock

grazing that removed fine fuels,

followed by effective fire suppression in

the mid to late 20th century (Swetnam

and Baisan 1996). Absence of ground

fires allowed a buildup of woody fuels

that precipitated infrequent but intense

crown fires (Danzer et al. 1997,

Swetnam and Baisan 1996). Absence of

vegetation and forest litter following

intense crown fires exposes soils to

surface and rill erosion during storms,

often causing high peak flows,

sedimentation, and erosion in

downstream drainages (DeBano and

Neary 1996). Following the 1994

Rattlesnake fire in the Chiricahua

Mountains, Arizona, a debris flow filled

in Rucker Lake, a historic Chiricahua

leopard frog locality. Leopard frogs

Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules 37349

(either Chiricahua or Ramsey Canyon

leopard frogs) apparently disappeared

from Miller Canyon in the Huachuca

Mountains, Arizona, after a 1977 crown

fire in the upper canyon and subsequent

erosion and scouring of the canyon

during storm events (Tom Beatty, Miller

Canyon, pers. comm. 2000). Leopard

frogs were historically known from

many localities in the Huachuca

Mountains; however, natural pool and

pond habitat is largely absent now, and

the only breeding leopard frog

populations occur in man-made tanks

and ponds. Bowers and McLaughlin

(1994) list six riparian plant species

they believed might have been

eliminated from the Huachuca

Mountains as a result of floods and

debris flow following destructive fires. Other activities have also affected the

habitat of the Chiricahua leopard frog.

For instance, in an attempt to increase

flow, explosives were used at Birch

Springs in the Animas Mountains to

open up the spring. The explosion

resulted in destruction of aquatic

habitat, flows were reduced rather than

increased, and Chiricahua leopard frogs

subsequently disappeared (N. Scott,

pers. comm. 1994). B. Overutilization for commercial,

recreational, scientific, or educational

purposes. The collection of Chiricahua

leopard frogs in Arizona is prohibited

by Arizona Game and Fish Commission

Order 41, except where such collection

is authorized by special permit.

Collection of Chiricahua leopard frogs is

also prohibited in Mexico. The

collection of Chiricahua leopard frogs is

not prohibited in the State of New

Mexico.

Over-collection for commercial

purposes is known to be a contributing

factor in the decline of other ranid frogs

(Jennings and Hayes 1985, Corn and

Fogelman 1984). Although collection is

not documented as a cause of

population decline or loss in the

Chiricahua leopard frog, the collection

of large adult frogs for food, scientific,

or other purposes, particularly after a

winter die-off or other event that

severely reduces the adult population,

can hasten the extirpation of small

populations. The listing of the

Chiricahua leopard frog and its

recognition as a rare species is

reasonably expected to increase its

value to collectors. In 1995, many large

adult Ramsey Canyon leopard frogs

(closely related to the Chiricahua

leopard frog) were illegally collected

from a site in the Huachuca Mountains,

Arizona, following publicity about the

rare status of the frog. C. Disease or predation. Predation by

introduced, nonnative bullfrogs and fish

was implicated as a contributing factor

in the decline of ranid frogs in western

North America (Bradford et al. 1993,

Hayes and Jennings 1986, Moyle 1973),

and may be the most important factor

identified so far in the current decline

of the Chiricahua leopard frog (Rosen et

al. 1994, 1996). In southeastern Arizona,

Rosen et al. (1994, 1996) documented 13

nonnative predaceous vertebrate species

in aquatic habitats in the range of the

Chiricahua leopard frog, including

bullfrog, tiger salamander, and 11 fish

species including bass, trout, and

catfish, among others. Rosen et al. (1994, 1996) found that

Chiricahua leopard frogs were replaced

by bullfrogs and centrarchid fish.

Sixteen of 19 localities where

Chiricahua leopard frogs occurred

lacked nonnative vertebrates. All

historical frog localities that lacked

Chiricahua leopard frogs supported

nonnative vertebrates. At the three sites

where Chiricahua leopard frogs

occurred with nonnatives (one site with

green sunfish, Lepomis cyanellus, and

two with tiger salamanders), either the

frog or the nonnative vertebrate was

rare. In two of the three cases, frogs may

have derived from other nearby

localities (Rosen et al. 1996), and thus

may have represented immigrants rather

than a viable population. In the San Rafael Valley, Arizona,

Chiricahua leopard frogs were found

only at sites that lacked nonnative fish

and bullfrogs (Snyder et al. 1996). In the

White Mountains of Arizona,

disappearance of Chiricahua leopard

frogs from most historical localities

correlated with the appearance of tiger

salamanders and nonnative crayfish

(Fernandez and Bagnara 1995). Crayfish

were found to prey upon Chiricahua

leopard frog larvae, metamorphs, and

adults. Crayfish recently spread to the

breeding pond of one of the last and

possibly the most robust populations of

Chiricahua leopard frogs in the White

Mountains, Arizona (M. Sredl, pers.

comm. 1999, Fernandez and Rosen

1998).

Sredl and Howland (1994) noted that

Chiricahua leopard frogs were nearly

always absent from sites supporting

bullfrogs and nonnative predatory fish;

however, Rosen et al. (1996) suggested

further study was needed to evaluate the

effects of mosquitofish, trout, and

catfish on frog presence. Rosen et al.

(1996) suspected that catfish would

almost always exclude Chiricahua

leopard frogs, and that trout may

exclude leopard frogs. In contrast to nonnative aquatic

vertebrates, numerous species of native

fish, the Sonoran mud turtle

(Kinosternon sonoriense), other species

of native ranid frogs, and native garter

snakes (Rosen et al. 1996, Platz and

Mecham 1979) commonly coexist with

the Chiricahua leopard frog. Tiger

salamanders are native to the following

portions of the Chiricahua leopard frog’s

range: San Rafael Valley in southeastern

Arizona (Ambystoma tigrinum

stebbinsi), the northern portion of the

species’ range (Ambystoma tigrinum

nebulosum), and the mountains of

Sonora, Chihuahua, and Durango

(Ambystoma rosaceum). Native fishes,

such as trout (Oncorhynchus), chub

(Gila), and topminnow (Poeciliopsis),

also occur within the range of the

Chiricahua leopard frog.

The Rio Grande leopard frog (Rana

berlandieri) is a recent introduction to

southwestern Arizona, (Platz et al.

1990). Although the species does not

presently occur within the range of the

Chiricahua leopard frog, the Rio

Grandes leopard frog is rapidly

expanding its distribution and currently

occurs as far east as the Phoenix area

(Rorabaugh et al. in prep.). If it

continues to spread eastward, the ranges

of the Rio Grande and Chiricahua

leopard frogs may overlap in the future.

This large, introduced leopard frog

might prey on small Chiricahua leopard

frogs (Platz et al. 1990), and tadpoles of

the two species may compete.

In June 1994, a die-off of Chiricahua

leopard frogs occurred at a stock tank in

the Chiricahua Mountains, Arizona, that

reduced the frog population from 60–80

adults to fewer than 10 (Sredl et al.

1997). Analysis of dead and moribund

frogs and water from the tank indicated

that disease was unlikely to be the cause

of the die-off, however, levels of

hydrogen sulfide were high enough to

be toxic to wildlife. The authors

suspected that high detritus loads

(including cattle feces), low water

levels, high water temperature, and low

concentrations of dissolved oxygen

created a suitable environment for

sulphur-producing bacteria that

produced toxic levels of hydrogen

sulfide. Chiricahua leopard frogs were

not found at this site in 1998.

The disease Postmetamorphic Death

Syndrome (PDS) was implicated in the

extirpation of Chiricahua leopard frog

populations in Grant County, New

Mexico, as well as in other frog and toad

species (Declining Amphibian

Populations Task Force 1993). All stock

tank populations of the Chiricahua

leopard frog in the vicinity of Gillette

and Cooney tanks in Grant County

disappeared within a 3-year period,

apparently as a result of PDS (Declining

Amphibian Populations Task Force

1993). The syndrome is characterized by

death of all or most recently

metamorphosed frogs in a short period

37350 Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules

of time. Dead or moribund frogs are

often found during or immediately

following winter dormancy or unusually

cold periods. The syndrome appears to

spread among adjacent populations

causing regional loss of populations or

metapopulations. Evidence suggests that

PDS may also be present in the Santa

Rita and Pajarito mountains, Arizona.

Although winter die-offs are not

documented, Steve Hale (Tucson, AZ,

pers. comm. 1994) observed very few

Chiricahua leopard frogs in the spring,

suggesting that frogs are dying during

the winter months. The apparent postmetamorphic death of the Tarahumara

frog was documented in southern

Arizona and northern Sonora (Hale et

al. 1995, Hale and Jarchow 1988), and

numbers of Ramsey Canyon leopard

frogs declined in the Huachuca

Mountains, Arizona, during the winters

of 1997–1998 and 1998–1999.

Arsenic poisoning may be a

contributing factor in PDS (Hale and

Jarchow 1988). Elevated arsenic levels

may have contributed to the extirpation

of the Tarahumara frog at a site in

northern Sonora (Hale and Jarchow

1988). Arsenic often occurs at high

levels near sulfitic mine tailings and

may be leached by rainfall containing

elevated levels of sulfate (Hale and

Jarchow 1988). Rainfall near Elgin in

southeastern Arizona contained high

levels of sulfate, probably due to

emissions from copper smelters in

Cananea and Nacozari, Sonora, and

Douglas, Arizona (Blanchard and

Stromberg 1987). The smelters at

Cananea and Douglas are no longer in

operation.

The size of the Chiricahua leopard

frog population in Sycamore Canyon in

the Pajarito Mountains of Arizona

appears to vary greatly from year to

year. This annual variation in

population size may be attributable, in

part, to cadmium toxicity (Hale and

Jarchow 1988). A likely source of

cadmium in Chiricahua leopard frog

habitat is emissions from copper

smelters at Cananea and Nacozari,

Sonora (Hale and Jarchow 1988,

Blanchard and Stromberg 1987).

Elevated levels of cadmium also occur

in and near tailings of copper, lead, and

zinc mines (Peterson and Alloway

1979). Cadmium may be mobilized and

deposited into stream courses through

rainfall.

From 1980 to 1985, Chiricahua

leopard frogs were abundant in

Sycamore Canyon only at Hank and

Yank Tank and in the creek

immediately downstream of it. In May

1982 the ratio of zinc to cadmium in

this reach was 5 to 30 times that of

downstream reaches where frogs were

absent or very rare (Hale and Jarchow

1988). Cumulative leaching and

deposition in drainages likely results in

elevated concentrations of cadmium in

downstream reaches. Thus, stream

headwaters and springs, such as Hank

and Yank Tank, may be important

refugia for frogs during times when

toxic conditions exist in downstream

reaches. Decreased zinc to cadmium

ratios may have also contributed to the

extirpation of the Tarahumara frog from

one site in southern Arizona and three

sites in northern Sonora (Hale and

Jarchow 1988).

Other contaminants or pathogens may

also be contributing to the decline of the

Chiricahua leopard frog. Lips (1998)

documented reduced abundance and

skewed sex ratios of two anuran species,

and dead and dying individuals of six

other amphibian species in Puntarenas

Province, Costa Rica. She attributed

these changes to biotic pathogens or

chemicals, or the combined effects of

environmental contamination and

climate change. Toxic agrochemicals

may have been transported via winds

and the atmosphere over long distances

to the remote sites studied in Costa Rica.

Her observations are also consistent

with a pathogen outbreak, and recent

evidence suggests a chytridiomycete

skin fungi may be responsible for the

declines (Longcore et al. 1999, Berger et

al. 1998). Lips (1998) noted that

declines in her study area are similar to

those reported for Monteverde, Costa

Rica, the Atlantic coast of Brazil, and

Australia. Amphibian decline in these

areas has spread wave-like across the

landscape, suggestive of pathogen

dispersal. Chytrid fungi have recently

been shown to be associated with

amphibian declines in Panama and

Queensland, Australia (Berger et al.

1998); the authors hypothesize that it is

the proximate cause of amphibian

decline in these areas. Chytrid fungi

have also been found in captive arroyo

toads, Bufo californicus, in California,

cricket frogs, Acris crepitans, in Illinois,

American toads, Bufo americanus, in

Maryland, and in Arizona, lowland

leopard frogs, Rana yavapaiensis, Rio

Grande leopard frogs, Ramsey Canyon

leopard frogs, and four populations of

Chiricahua leopard frogs (M. Sredl, pers.

Comm., 2000; Milius 1998). The role of

the fungi in the population dynamics of

the Chiricahua leopard frog and these

other North American species is as yet

undefined; however, it may well prove

to be an important contributing factor in

observed population decline. Rapid

death of recently metamorphosed frogs,

typical of post-metamorphic death

syndrome, is also characteristic of

chytrid infections. Thus, chytrids may

have played a role in extirpation of

stock tank populations of Chiricahua

leopard frog in New Mexico (Declining

Amphibian Populations Task Force

1993), as well as overwinter die-offs in

the mountains of southern Arizona.

D. The inadequacy of existing

regulatory mechanisms. A variety of

existing international conventions and

law and Federal and State regulations

provide limited protection to the

Chiricahua leopard frog and its habitat.

State regulations prohibit collection or

hunting of Chiricahua leopard frogs in

Arizona, except under special permit.

Collection is not prohibited in New

Mexico, and although collecting has not

been documented as a cause of

population loss, the typically small,

geographically isolated populations of

this species are extremely vulnerable to

collection pressure. Regulations have

not been adequate to stem habitat loss

and degradation or to address factors

such as introduction of nonnative

predators.

In Mexico, the collection of

threatened species is prohibited. The

habitats of the Chiricahua leopard frog

and other threatened species are

protected from some activities in

Mexico. The species is not protected by

the Convention on International Trade

in Endangered Species of Wild Fauna

and Flora, which regulates international

trade.

The Lacey Act (16 U.S.C. 3371 et

seq.), as amended in 1982, provides

some protection for the Chiricahua

leopard frog. This legislation prohibits

the import, export, sale, receipt,

acquisition, purchase, and engagement

in interstate or foreign commerce of any

species taken, possessed, or sold in

violation of any law, treaty, or

regulation of the United States, any

Tribal law, or any law or regulation of

any State.

The Federal Land Policy Management

Act of 1976 (43 U.S.C. 1701 et seq.) and

the National Forest Management Act of

1976 (16 U.S.C. 1600 et seq.) direct

Federal agencies to prepare

programmatic-level management plans

to guide long-term resource

management decisions. In addition, the

Forest Service is required to ‘‘maintain

viable populations of existing native

and desired nonnative species’’ in their

planning areas (36 CFR 219.19). These

regulations have resulted in the

preparation of a variety of land

management plans by the Forest Service

and the Bureau of Land Management

that address management and resource

protection of areas that support, or in

the past supported, populations of

Chiricahua leopard frogs.

Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules 37351

At least 47 of 79 localities confirmed

as supporting extant populations of the

Chiricahua leopard frog from 1995 to

the present occur entirely, or in part, on

National Forest Lands. Thirty-four

extant localities occur entirely, or in

part, on the Coronado National Forest,

Arizona. Additional localities occur on

the Gila, Apache-Sitgreaves, Tonto, and

Coconino National Forests. As a result,

Forest Service land management plans

are particularly important in guiding the

management of Chiricahua leopard frog

habitat. However, these plans have not

always adequately protected this

species’ habitat. Many activities that

affect the Chiricahua leopard frog and

its habitat are beyond Forest Service

control. For instance, the Forest Service

does not have the authority to regulate

off-site activities such as atmospheric

pollution from copper smelters or other

actions that may be responsible for

global amphibian declines, including

that of the Chiricahua leopard frog. The

Forest Service has only limited ability to

regulate introductions or stockings of

nonnative species that prey on

Chiricahua leopard frogs. Despite

extensive planning efforts by the Forest

Service and implementation of

management actions to maintain viable

populations of native species on Forest

Service lands, loss of Chiricahua

leopard frog populations and

metapopulations continues.

The National Environmental Policy

Act of 1969 (NEPA) (42 U.S.C. 4321–

4370a) requires Federal agencies to

consider the environmental impacts of

their actions. NEPA requires Federal

agencies to describe the proposed

action, consider alternatives, identify

and disclose potential environmental

impacts of each alternative, and involve

the public in the decision-making

process. Federal agencies are not

required to select the alternative having

the least significant environmental

impacts. A Federal action agency may

select an action that will adversely

affect sensitive species provided that

these effects were known and identified

in a NEPA document. Most actions

taken by the Forest Service, the Bureau

of Land Management, and other Federal

agencies that affect the Chiricahua

leopard frog are subject to the NEPA

process.

State and Federal air quality

regulations strictly regulate emissions

from copper smelters, a major source of

atmospheric cadmium and arsenic,

pollutants that may adversely affect the

Chiricahua leopard frog (Hale and

Jarchow 1988). However, a major source

of airborne pollutants likely affecting

this species has been copper smelters in

Cananea and Nacozari, Sonora, which

are not subject to the same strict

regulations as in the United States (Hale

et al. Blanchard and Stromberg 1987).

Wetland values and water quality of

aquatic sites inhabited by the

Chiricahua leopard frog are afforded

varying protection under the Federal

Water Pollution Control Act of 1948 (33

U.S.C. 1251–1376), as amended, and

Federal Executive Orders 11988

(Floodplain Management) and 11990

(Protection of Wetlands). The protection

afforded by these and other Federal laws

and regulations discussed herein is

inadequate to halt population

extirpation and the degradation of the

habitat of this species.

The AGFD included the Chiricahua

leopard frog on their draft list of species

of concern (AGFD 1996); however, this

designation affords no legal protection

to the species or its habitat. Collection

of Chiricahua leopard frogs is prohibited

in Arizona, except by special permit.

The Chiricahua leopard frog is not a

State-listed species, nor is collection

prohibited in New Mexico.

The New Mexico Department of Game

and Fish adopted a wetland protection

policy in which the Department does

not endorse nor take any action that

would promote any private or public

project that would result in a net

decrease in either wetland acreage or

wetland habitat values. This policy

affords only limited protection to

Chiricahua leopard frog habitat because

it is advisory only; destruction or

alteration of wetlands is not regulated

by State law.

State of Arizona Executive Order

Number 89–16 (Streams and Riparian

Resources), signed on June 10, 1989,

directs State agencies to evaluate their

actions and implement changes, as

appropriate, to allow for restoration of

riparian resources. Implementation of

this regulation may reduce adverse

effects of some State actions on the

habitat of the Chiricahua leopard frog.

E. Other natural or manmade factors

affecting its continued existence.

Because of the inherent dynamic nature

of southwestern wetland and riparian

habitats, coupled with the increased

likelihood of extirpation characteristic

of small populations, the viability of

extant populations of the Chiricahua

leopard frog is thought, in many cases,

to be relatively short. Approximately 38

of 79 extant localities found from 1995

to the present were located in artificial

tanks or impoundments constructed for

watering livestock. These environments

are very dynamic due to flooding,

drought, and human activities such as

maintenance of stock tanks. In addition,

stock tank populations are often quite

small. Small populations are subject to

extirpation from random variations in

such factors as the demographics of age

structure or sex ratio, and from disease

and other natural events (Wilcox and

Murphy 1985). Inbreeding depression

and loss of genetic diversity may also

occur in small populations of less than

a few hundred individuals; such loss

may reduce the fitness of individuals

and the ability of the population to

adapt to change (Frankel and Soule

1981). Both of these genetic

considerations result in an increased

likelihood of extirpation (Lande and

Barrowclough 1987).

The dynamic nature of stock tank

habitats and the small size of the

populations that inhabit them suggest

that many of these populations are not

likely to persist for long periods. As an

example, siltation and drought

dramatically reduced the extent of

aquatic habitat at Rosewood Tank in the

San Bernardino Valley, Arizona (Matt

Magoffin, San Bernardino National

Wildlife Refuge, pers. comm. 1997).

Aquatic habitat was reduced in June

1994, to a surface area of approximately

60 square feet (sq. ft) that supported a

population of approximately eight adult

Chiricahua leopard frogs and several

hundred tadpoles. In this instance, the

landowner was only able to prevent the

population from being extirpated by

repeated efforts to intervene on behalf of

the Chiricahua leopard frog in trucking

water to the site, rebuilding the tank,

and constructing a small permanent

pond to maintain habitat for the species.

Some larger populations occurring in

stream courses or other non-stock tank

habitats also experience dramatic

changes in population size, such as in

Sycamore Canyon in the Pajarito

Mountains, Arizona, and on the eastern

slope of the Santa Rita Mountains,

Arizona (S. Hale, pers. comm. 1994).

These habitats, although much larger

than a stock tank, experience dramatic

environmental phenomena such as

floods, drought, and in the case of

Sycamore Canyon, varied zinc to

cadmium ratios, all of which may cause

populations to crash. This finding

suggests that even these relatively large

and natural habitats and the frog

populations they support are very

dynamic. As a result of this dynamic

nature, leopard frog populations are

susceptible to extirpation.

As discussed in the ‘‘Background’’

section of this proposed rule,

metapopulations are more likely to

persist over time than small, more

isolated populations, because

individuals and genetic material can be

exchanged among populations within

the metapopulation, resulting in

increased recolonization rates and fewer

37352 Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules

potential genetic problems. To define

metapopulations of the Chiricahua

leopard frog, some knowledge of the

ability of this species to move among

aquatic sites is required. Although the

ability of the Chiricahua leopard frog to

move among aquatic sites needs some

additional study, the Chiricahua leopard

frog is considered a highly aquatic

species (Stebbins 1985) that may not

travel as far from water as other leopard

frog species. Amphibians, in general,

have limited dispersal and colonization

abilities due to physiological

constraints, limited movements, and

high site fidelity (Blaustein et al. 1994).

Dispersal of Chiricahua leopard frogs

probably occurs most often along

drainages, particularly those with

permanent water, but also along

intermittent stream courses and

overland during summer rains.

Where several populations of

Chiricahua leopard frog occur in close

proximity (separated by no more than a

few kilometers), functional

metapopulations may exist. Two areas

of the Galiuro Mountains of Arizona

support a total of 12 extant localities,

including 4 localities in the northern

end of the range and 8 in the southern

end. A similar cluster of seven localities

occurs in the Dragoon Mountains,

Arizona. Metapopulations may exist

elsewhere, for instance, in Arizona in

the southwest quarter of the San Rafael

Valley, and in the Crouch Creek area,

and in New Mexico, east and northeast

of Hurley, and in the Frieborn CanyonDry Blue Creek area. However, with the

exception of those in the Dragoon and

southern Galiuro mountains,

metapopulations of which we are aware

probably consist of five or fewer

localities. Metapopulations, particularly

the larger examples, are critical to longterm survival of the species. Also

critical are large populations, such as on

the Tularosa River, New Mexico, and

Sycamore Canyon and associated tanks

in the Pajarito Mountains, Arizona,

which are expected to experience

relatively low extinction rates and may

serve as source populations for

colonization of nearby suitable habitats.

In making the determination to

propose this rule, we carefully assessed

the best scientific and commercial

information available regarding the past,

present, and future threats faced by the

Chiricahua leopard frog. Based on this

evaluation, our preferred action is to list

the Chiricahua leopard frog as

threatened. The Act defines an

endangered species as one that is in

danger of extinction throughout all or a

significant portion of its range. The Act

defines a threatened species as any

species likely to become endangered

within the foreseeable future.

Within its range in the United States,

the Chiricahua leopard frog is believed

absent from a relatively high percentage

of historical localities, and has

undergone regional extirpation in areas

where it was once well-distributed. The

status of populations in Mexico are

unknown, but the species is considered

as threatened by the Mexican

Government. The species is not in

immediate danger of extinction, because

at least a few relatively robust

populations and metapopulations still

exist (e.g., Tularosa River, Dragoon

Mountains, Galiuro Mountains), and 79

extant localities have been documented

from 1995 to the present. However, if

present threats and declines continue,

the Chiricahua leopard frog is likely to

become an endangered species in the

foreseeable future (Painter 1996, Rosen

et al. 1996). Therefore, we believe that

the Chiricahua leopard frog meets the

definition of a threatened species under

the Act.

Critical Habitat

Critical habitat is defined in Section

3 of the Act as—(I) the specific areas

within the geographic area occupied by

a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management consideration or

protection and; (ii) specific areas

outside the geographic area occupied by

a species at the time it is listed, upon

determination that such areas are

essential for the conservation of the

species. ‘‘Conservation’’ means the use

of all methods and procedures that are

necessary to bring an endangered

species or a threatened species to the

point at which listing under the Act is

no longer necessary.

Section 4(b)(2) and 4(b)(6)(C) of the

Act, as amended, and implementing

regulations (50 CFR 424.12) require that,

to the maximum extent prudent and

determinable, the Secretary designate

critical habitat at the time the species is

determined to be endangered or

threatened. The designation of critical

habitat is not prudent (50 CFR

424.12(a)(1)) when one or both of the

following situations exist—(1) the

species is threatened by taking or other

human activity, and identification of

critical habitat can be expected to

increase the degree of threat, or (2) such

designation would not be beneficial to

the species.

Critical habitat designation would

require publishing in the Federal

Register the locations of all or the most

important Chiricahua leopard frog

populations and habitats. As discussed

under Factor B in the ‘‘Summary of

Factors Affecting the Species,’’ the

Chiricahua leopard frog is potentially

threatened by collection. Publishing

locality data would facilitate collection

as it would provide collectors with

specific, previously unknown

information about the location of this

species. Collection has contributed to

the decline of other rare anurans,

including the endangered Wyoming

toad (Bufo hemiophrys baxteri),

threatened California red-legged frog

(Rana aurora draytonii) (Stebbins and

Cohen 1995, Jennings and Hayes 1995),

and a number of other anuran species

worldwide (Vial and Saylor 1993).

Scientists have not documented

collection, to date, as a cause of

population decline or loss in the

Chiricahua leopard frog. However, such

collection would be difficult to

document. Collection of large adult

frogs for food, fish bait, scientific, or

other purposes, particularly after a

winter die-off or other event that

severely reduces the adult population,

could hasten the extirpation of small

populations. Recognition of the

Chiricahua leopard frog as a threatened

species may increase its value to

collectors. The Chiricahua leopard frog

is an attractive, often bright green frog

that we believe would do quite well in

captivity. The Northern leopard frog,

Rana pipiens, a very similar animal, is

common in the pet trade. We are aware

of internet trade in ‘‘leopard frogs,’’

which could include Chiricahua leopard

frogs. Chiricahua leopard frogs should

be as attractive as the Northern leopard

frog to collectors, or perhaps more so

because of their rarity.

Import and export data provided by

our Division of Law Enforcement

document a substantial amount of

international trade in Rana spp.

Specifically, for the period of January 1,

1996, to October 31, 1998, 9,997 live

individuals of Rana spp. were imported

into and 51,043 live individuals were

exported from the United States.

Because shipments of wildlife from the

United States are not as closely

monitored as imports, and are

sometimes not recorded to the genus

level (this is also true for imports as

well), the number of exports

documented for this timeframe is likely

an under representation of what actually

occurred.

In 1995, many large adult Ramsey

Canyon leopard frogs (which are very

similar in appearance and closely

related to the Chiricahua leopard frog)

were illegally collected from a site in

the Huachuca Mountains, Arizona,

Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules 37353

following publicity about the rare status

of the frog. The locality, which occurs

within the range of the Chiricahua

leopard frog, has been considered

extirpated since 1997. Collection

probably contributed to its demise.

Following newspaper publicity

regarding our proposal to list the Arroyo

toad (Bufo microscaphus californicus), a

former U.S. Forest Service employee

found that a main pool near the road,

formerly with a high density of calling

males, was absent of males, some

previously tagged. The tagged males

could not be located elsewhere, and

their absence was not thought to be due

to natural movement or predation

(Nancy Sandburg, U.S. Forest Service

pers. comm. 1999). Publishing maps for

the best populations and habitats of

Chiricahua leopard frog could cause or

contribute to similar declines or

extirpations. The evidence shows,

therefore, that threat of collection would

increase substantially if we disclosed

specific location information for all or

the most important Chiricahua leopard

frog populations and habitats.

Publishing locality data could also

facilitate vandalism of habitats where

Chiricahua leopard frogs occur. Platz

(1995) noted the disappearance of large

tadpoles at a Ramsey Canyon leopard

frog site in Brown Canyon, Huachuca

Mountains, in 1991–1992, and

suggested their disappearance may

have, in part, resulted from an act of

vandalism. Many Chiricahua leopard

frog habitats are small and could be

easily contaminated with toxicants or

taken over by nonnative predators,

resulting in extirpation of frog

populations. The majority of extant

populations also occur on public lands

(primarily National Forest lands) with

public access routes that lead to the

populations or pass nearby. Public

access to these sites is reasonably

expected to facilitate collections or

vandalism.

Publishing maps of Chiricahua

leopard frog sites could also facilitate

disease transmission. Chytridiomycosis

and other amphibian diseases can be

spread by transporting mud, water, or

frogs from one site to another. If a

person visits a site where disease is

present and then travels to another site,

disease can be spread via muddy or wet

boots, nets, vehicles or other equipment

(Speare et al. 1998, David Green,

National Wildlife Health Center,

Madison, Wisconsin, pers. comm. 2000).

Although other hypotheses have been

proposed (Carey et al. 1999), Daszak et

al. (1999) find that the pattern of

amphibian deaths and population

declines associated with

chytridiomycosis is consistent with an

introduced pathogen. The chytrid

fungus is not known to have an airborne

spore, but rather disperses among

individuals and populations via

zoospores that swim through water or

during contact between individual frogs

(Daszak 1998). If chytridiomycosis is a

recent introduction on a global scale,

then dispersal by way of global or

regional commerce; translocation of

frogs and other organisms; and travel

among areas by anglers, scientists,

tourists, and others are viable scenarios

for transmission of this disease (Daszak

et al. 1999, Halliday 1998). Until the

spread of chytridiomycosis is better

understood, and the role of this and

other diseases in the decline of the

Chiricahua leopard frog is clarified,

visitation of Chiricahua leopard frog

sites should not be encouraged.

Publishing maps of Chiricahua leopard

frog sites could facilitate visitation by

collectors or those who want to view the

frog. Increased visitation increases the

risk of disease transmission.

The prohibition of destruction or

adverse modification of critical habitat

is provided under section 7 of the Act

and, therefore applies only to actions

funded, authorized, or carried out by

Federal agencies. ‘‘Destruction or

adverse modification’’ is defined under

50 CFR 402.02 as an action that

appreciably diminishes the value of

critical habitat for the survival and

recovery of the listed species. Similarly,

section 7 prohibits jeopardizing the

continued existence of a listed species.

‘‘Jeopardize the continued existence’’ is

defined as an action that would be

expected to reduce appreciably the

likelihood of survival and recovery of a

listed species.

Given the similarity in the above

definitions, in most cases Federal

actions that would appreciably reduce

the value of critical habitat for the

survival and recovery of the Chiricahua

leopard frog would also reduce

appreciably the likelihood of survival

and recovery of the species. The

Chiricahua leopard frog occurs mostly

in relatively small populations that are

highly vulnerable to extirpation. Habitat

alteration of a severity to result in

destruction or adverse modification of

critical habitat would likely also

jeopardize the continued existence of

the species. Similarly, reasonable and

prudent alternative actions that would

remove the likelihood of jeopardy

would also remove the likelihood of

destruction or adverse modification of

critical habitat. While a critical habitat

designation for habitat currently

occupied by this species would not be

likely to change the section 7

consultation outcome because an action

that destroys or adversely modifies such

critical habitat would also be likely to

result in jeopardy to the species, in

some situations section 7 consultation

might be triggered only if critical habitat

is designated. Examples could include

unoccupied habitat or occupied habitat

that may become unoccupied in the

future. However, we investigated

whether designating unoccupied habitat

would provide some potential benefit.

We are aware of only a few unoccupied

sites that would be essential for the

conservation of the Chiricahua leopard

frog; the vast majority of essential sites

are occupied. As a result, we see little

benefit from the designation of

unoccupied habitat. Designating critical

habitat may also provide some

educational or informational benefits.

However, any added benefit would be

outweighed by the publication of these

additional areas in detailed maps that

would subject the species to the threat

of collecting, vandalism, and disease

transmission.

In balancing the benefits of critical

habitat designation against the increased

threats, we believe the records show

that few, if any, benefits would be

derived in this particular instance from

designation of critical habitat. We

believe that any potential benefits of

critical habitat designation, beyond

those afforded by listing, when weighed

against the negative impacts of

disclosing site-specific localities, does

not yield an overall benefit. We,

therefore, determine that critical habitat

designation is not prudent for the

Chiricahua leopard frog.

Special Rule

As a means to promote conservation

efforts on behalf of the Chiricahua

leopard frog, we are proposing a special

rule under section 4(d) of the Act.

Under the rule, take of Chiricahua

leopard frog caused by livestock use of

or maintenance activities at livestock

tanks located on private or tribal lands

would be exempt from section 9 of the

Act. The rule targets tanks on private

and tribal lands to encourage

landowners and ranchers to continue to

maintain these tanks that are not only

important for livestock operations, but

also provide habitat for leopard frogs.

Livestock use and maintenance of tanks

on Federal lands will be addressed

through the section 7 process.

Available Conservation Measures

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.

37354 Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules

Recognition through listing encourages

and results in conservation actions by

Federal, State, and private agencies,

groups, and individuals. The Act

provides for possible land acquisition

and cooperation with the States and

requires that recovery actions be carried

out for all listed species. The protection

required of Federal agencies and the

prohibitions against taking and harm are

discussed, in part, below.

Section 7(a) of the Act, as amended,

requires Federal agencies to evaluate

their actions with respect to any species

that is proposed or listed as endangered

or threatened and with respect to its

critical habitat, if any is designated or

proposed. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR part

402. Section 7(a)(4) requires Federal

agencies to confer with us on any action

that is likely to jeopardize the continued

existence of a proposed species or result

in destruction or adverse modification

of proposed critical habitat. If a species

is listed or critical habitat is designated

subsequently, Section 7(a)(2) requires

Federal agencies to ensure that activities

they authorize, fund, or carry out are not

likely to jeopardize the continued

existence of such a species or to 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 us.

The Chiricahua leopard frog occurs on

Federal lands managed by the

Coronado, Apache-Sitgreaves, Tonto,

Coconino, and Gila National Forests; the

Bureau of Land Management; and our

refuges. Examples of Federal actions

that may affect the Chiricahua leopard

frog include dredge-and-fill activities,

grazing programs, construction and

maintenance of stock tanks, logging and

other vegetation removal activities,

management of recreation, road

construction, fish stocking, issuance of

rights-of-ways, prescribed fire and fire

suppression, and discretionary actions

authorizing mining. These and other

Federal actions require Section 7

consultation if the action agency

determines that the proposed action

may affect listed species.

Development on private or State lands

requiring permits from Federal agencies,

such as permits from the U.S. Army

Corps of Engineers under section 404 of

the Clean Water Act, would also be

subject to the Section 7 consultation

process. Federal actions not affecting

the species, as well as actions that are

not federally funded or permitted would

not require Section 7 consultation.

However, prohibitions under Section 9

of the Act (discussed below) would

apply.

Important regional efforts are

currently under way to establish viable

metapopulations of Chiricahua leopard

frogs. We are currently working with the

Arizona Game and Fish Department,

New Mexico Department of Game and

Fish, and several Federal and private

landowners in these efforts. An ongoing

regional conservation planning effort in

the San Bernardino Valley, Arizona,

being undertaken by this agency, the

Forest Service, State, and private

individuals is a good example of such

efforts. Owners of the Magoffin Ranch,

in particular, have devoted extensive

efforts to conserving leopard frogs and

habitat at stock tanks on that ranch. As

part of the San Bernardino Valley

conservation effort, a high school

teacher and his students rear tadpoles in

Douglas, Arizona, and established

populations of Chiricahua leopard frogs

in small constructed wetlands at

Douglas area public schools (Biology

150 Class, Douglas High School 1998).

In another regional conservation effort,

the Tonto National Forest, Arizona,

Arizona Game and Fish Department,

and the Phoenix Zoo have developed a

Chiricahua leopard frog ‘‘conservation

and management zone’’ in which frogs

have been reared and released into the

wild to establish new populations (Sredl

and Healy 1999). A similar regional

conservation plan, involving The Nature

Conservancy, Randy Jennings, and the

New Mexico Game and Fish

Department, is under way on the

Mimbres River, New Mexico.

We commend the individuals

involved in these efforts. These regional

conservation plans are proving grounds

for developing the techniques to recover

the species rangewide. As such, we

strongly support them and encourage

others to develop regional conservation

plans; we will provide assistance and

use our authorities to help develop and

implement site-specific conservation

activities for this species. If the

Chiricahua leopard frog is listed,

handling, rearing, translocation or other

forms of direct or incidental take

resulting from conservation activities

can continue under section 10 permits

from us. Incidental take associated with

conservation plans may also be

permitted pursuant to an incidental take

statement in a biological opinion for

activities under Federal jurisdiction. If

the species is listed, we will work with

the individuals involved in these

conservation efforts to ensure that

permits are issued promptly and that

the process does not interrupt or hinder

ongoing recovery actions.

We are also exploring other

opportunities to permit conservation

activities. In particular, we encourage

the public to comment on the

desirability of promulgating a special

rule under section 4(d) of the Act that

would exempt from the section 9 take

prohibitions activities associated with

conservation plans. Eligible

conservation plans would need to

promote recovery and be approved by

us and the appropriate State game and

fish agency. Activities potentially

addressed under such a plan, and which

would be exempt from the section 9 take

provisions, could include, but are not

limited to, construction of new habitats

or modification of existing habitats,

fencing, enhancement or control of

vegetation, translocation of frogs, and

monitoring of frog populations.

The Act and its implementing

regulations set forth a series of general

prohibitions and exceptions that apply

to all threatened wildlife. These

prohibitions, codified at 50 CFR 17.31,

in part, make it illegal for any person

subject to the jurisdiction of the United

States to take (including harass, harm,

pursue, hunt, shoot, wound, kill, trap,

or collect, or attempt any such conduct),

import or export, transport in interstate

or foreign commerce in the course of a

commercial activity, or sell or offer for

sale in interstate or foreign commerce

any threatened species unless provided

for under a special rule. To possess, sell,

deliver, carry, transport, or ship any

such wildlife that has been taken

illegally is also illegal. Certain

exceptions will apply to persons acting

in an agency capacity on the behalf of

the Service and to activities associated

with cooperative State conservation

agencies.

Permits may be issued to carry out

otherwise prohibited activities

involving threatened wildlife species

under certain circumstances.

Regulations governing permits are

codified at 50 CFR 17.32. Such permits

are available for scientific purposes, to

enhance the propagation or survival of

the species, and/or for incidental take in

connection with otherwise lawful

activities. For threatened species,

permits also are available for zoological

exhibition, educational purposes, or

special purposes consistent with the

purposes of the Act.

Our policy (July 1, 1994; 59 FR 34272)

is to identify to the maximum extent

practicable at the time a species is listed

those activities that would or would not

likely constitute a violation of section 9

of the Act. The intent of this policy is

to increase public awareness of the

effect of the listing on proposed and

ongoing activities within a species’

Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules 37355

range. Based on the best available

information, the following are examples

of actions that would not likely result in

a violation of section 9:

(1) Actions that may affect Chiricahua

leopard frog that are authorized, funded,

or carried out by a Federal agency when

the action is conducted in accordance

with an incidental take statement issued

by us pursuant to section 7 of the Act;

(2) Actions that may result in take of

Chiricahua leopard frog when the action

is conducted in accordance with a

permit under section 10 of the Act;

(3) Recreational activities that do not

destroy or significantly degrade

occupied habitat, and do not result in

take of frogs;

(4) Release, diversion, or withdrawal

of water from or near occupied habitat

in a manner that does not displace or

result in desiccation or death of eggs,

tadpoles, or adults; does not disrupt

breeding activities of adults; does not

favor introduction of nonnative

predators; and does not alter vegetation

characteristics at or near occupied sites

to an extent that exposes the frogs to

increased predation; and

(5) Logging activities that do not

result in erosion or siltation of stream

beds and other aquatic habitats

occupied by Chiricahua leopard frogs,

do not adversely affect water quality,

and do not denude shoreline vegetation

or terrestrial vegetation in occupied

habitat.

Activities that we believe could

potentially result in ‘‘take’’ of the

Chiricahua leopard frog, include, but are

not limited to the following:

(1) Unauthorized collection, capture

or handling of the species;

(2) Intentional introduction of

nonnative predators, such as nonnative

fish, bullfrogs, crayfish, or tiger

salamanders;

(3) Any activity not carried out

pursuant to the proposed special rule

(described at the end of this document)

in ‘‘§ 17.43 Special rules-amphibians’’

that results in destruction or significant

alteration of habitat of Chiricahua

leopard frog including, but not limited

to, the discharge of fill material, the

diversion or alteration of stream flows

and aquatic habitats occupied by the

species or withdrawal of water to the

point at which habitat becomes

unsuitable for the species, and the

alteration of the physical channels

within the stream segments and aquatic

habitats occupied by the species;

(4) Water diversions, groundwater

pumping, water releases, or other water

management activities that result in

displacement or death of eggs, tadpoles,

or adult frogs; disruption of breeding

activities; introduction of nonnative

predators; or significant alteration of

vegetation characteristics at or near

occupied sites. However, pursuant to

the proposed special rule for this

species, operation and maintenance of

livestock tanks on private or tribal lands

that result in incidental mortality of

frogs would not be considered a

violation of section 9;

(5) Discharge or dumping of

hazardous materials, silt, or other

pollutants into waters supporting the

species;

(6) Possession, sale, delivery,

transport, or shipment of illegally taken

Chiricahua leopard frogs; and

(7) Actions that take Chiricahua

leopard frogs that are not authorized by

either a permit under section 10 of the

Act or an incidental take statement

under section 7 of the Act, or are

identified as prohibited in the special

rule ‘‘§ 17.43 Special rules-amphibians’’

for this species; the term ‘‘take’’

includes harassing, harming, pursuing,

hunting, shooting, wounding, killing,

trapping, capture, or collecting, or

attempting any of these actions.

In the description of activities above,

a violation of section 9 would occur if

those activities occur to an extent that

would result in ‘‘take’’ of Chiricahua

leopard frog. Not all of the activities

mentioned above will result in violation

of section 9 of the Act; only those

activities that result in ‘‘take’’ of

Chiricahua leopard frog would be

considered violations of section 9.

Direct your questions regarding whether

specific activities will constitute a

violation of section 9 to the Field

Supervisor, Arizona Ecological Services

Field Office (see ADDRESSES section).

Address your requests for copies of the

regulations on listed wildlife and

inquiries about prohibitions and permits

to the U.S. Fish and Wildlife Service,

Branch of Endangered Species/Permits,

P.O. Box 1306, Albuquerque, New

Mexico 87103 (telephone (505)248–

6920, facsimile (505)248–6922).

Public Comments Solicited

We intend for any final action

resulting from this proposal to be as

accurate and as effective as possible.

Therefore, we solicit comments or

suggestions from the public, other

concerned governmental agencies, the

scientific community, industry, or any

other interested party concerning this

proposed rule. We particularly seek

comments concerning:

(1) Biological, commercial trade, or

other relevant data concerning any

threat (or lack thereof) to the Chiricahua

leopard frog;

(2) The location of any additional

populations of Chiricahua leopard frog

and the reasons why any habitat should

or should not be determined to be

critical habitat as provided by section 4

of the Act;

(3) Additional information concerning

the range, distribution, and population

size of the Chiricahua leopard frog;

(4) Current or planned activities in the

subject area and their possible impacts

on the Chiricahua leopard frog; and

(5) Additional information pertaining

to the promulgation of a special rule to

exempt from the section 9 take

prohibitions livestock use of and

maintenance activities at livestock tanks

located on private or tribal lands.

Although beyond the scope of the

currently proposed special rule, we also

solicit comment on the desirability of a

special rule that would exempt from the

section 9 take prohibitions activities

associated with conservation plans that

promote recovery and are approved by

us and the appropriate State game and

fish agency.

Our practice is to make comments,

including names and home addresses of

respondents, available for public review

during regular business hours.

Individual respondents may request that

we withhold their home address from

the rulemaking record, which we will

honor to the extent allowable by law. In

some circumstances, we would

withhold from the rulemaking record a

respondent’s identity, as allowable by

law. If you wish for us to withhold your

name and/or address, you must state

this request prominently at the

beginning of your comment. However,

we will not consider anonymous

comments. We will make all

submissions from organizations or

businesses, and from individuals

identifying themselves as

representatives or officials of

organizations or businesses, available

for public inspection in their entirety.

Comments and materials received will

be available for public inspection, by

appointment, during normal business

hours (see ADDRESSES section).

In making a final decision on this

proposed rule, we will take into

consideration the comments and any

additional information we receive. The

final rule may differ as a result of this

process.

The Act provides for one or more

public hearings on this proposal, if

requested. We must receive requests

within 45 days of the date of publication

of the proposal in the Federal Register.

Such requests must be made in writing

and be addressed to the Field

Supervisor (see ADDRESSES section).

Executive Order 12866 requires each

agency to write regulations and notices

that are easy to understand. We invite

37356 Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules

your comments on how to make this

proposed rule easier to understand

including answers to questions such as

the following: (1) Are the requirements

in the proposed rule clearly stated? (2)

Does the proposed rule contain

technical language or jargon that

interferes with the clarity? (3) Does the

format of the proposed rule (grouping

and order of sections, use of headings,

paragraphing, etc.) aid or reduce its

clarity? (4) Is the description of the

proposed rule in the ‘‘Supplementary

Information’’ section of the preamble

helpful in understanding the notice?

What else could we do to make the

proposed rule easier to understand?

Send a copy of any comments that

concern how we could make this

proposed rule easier to understand to

the Field Supervisor (see ADDRESSES

section).

Required Determinations

Prior to publication of the final rule,

we will analyze the economic effects of

the special rule and will determine

whether the special rule is in

compliance with the following. We will

announce the availability of our analysis

in a separate Federal Register notice:

(1) Regulatory Planning and Review

(2) Regulatory Flexibility Act (5

U.S.C. 601 et seq.)

(3) Small Business Regulatory

Enforcement Fairness Act (5 U.S.C.

804(2))

(4) Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

(5) Taking Personal Property Rights

(Executive Order 12630)

(6) Federalism (Executive Order

13132)

Civil Justice Reform

In accordance with Executive Order

12988, the Department of the Interior’s

Office of the Solicitor determined that

this proposed special rule does not

unduly burden the judicial system and

meets the requirements of sections 3(a)

and 3(b)(2) of the Order. The Office of

the Solicitor will review the final

special rule. We will make every effort

to ensure that the final special rule

contains no drafting errors, provides

clear standards, simplifies procedures,

reduces burden, and is clearly written

such that litigation risk is minimized.

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.)

This proposed rule and special rule

does not contain any information

collection requirements for which Office

of Management and Budget (OMB)

approval under the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501

et seq.) is required. An information

collection related to the rule pertaining

to permits for endangered and

threatened species has OMB approval

and is assigned clearance number 1018–

0094. An agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. This proposed rule and

special rule does not alter that

information collection requirement. For

additional information concerning

permits and associated requirements for

threatened species, see 50 CFR 17.32.

National Environmental Policy Act

We determined that we do not need

to prepare Environmental Assessments

and Environmental Impact Statements,

as defined under the authority of the

National Environmental Policy Act of

1969, in connection with regulations

adopted pursuant to Section 4(a) of the

Endangered Species Act of 1973, as

amended. We published a notice

outlining the basis for this

determination in the Federal Register

on October 25, 1983 (48 FR 49244).

References Cited

A complete list of all references cited

in this rule is available upon request

from the Arizona Ecological Services

Field Office (see ADDRESSES section).

Author: The primary author of this

notice is James Rorabaugh (see

ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Proposed Regulation Promulgation

We propose to amend part 17,

subchapter B of chapter I, title 50 of the

Code of Federal Regulations, as set forth

below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted.

2. Amend section 17.11(h) by adding

the following in alphabetical order,

under AMPHIBIANS, to the List of

Endangered and Threatened Wildlife:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where

endangered or

threatened

Status When listed Critical

habitat Special rules

Common name Scientific name

AMPHIBIANS

*******

Frog, Chiricahua

leopard.

Rana

chiricahuensis.

U.S.A. (AZ, NM),

Mexico.

Entire .................... T .................... NA § 17.43(b)

*******

Federal Register / Vol. 65, No. 115 / Wednesday, June 14, 2000 / Proposed Rules 37357

3. We propose to amend 50 CFR 17.43

by adding paragraph (b) to read as

follows:

§ 17.43 Special rules—amphibians.

* * * * *

(b) What species is covered by this

special rule? Chiricahua leopard frog

(Rana chiricahuensis).

(1) What activities are prohibited?

Except as noted in paragraph (b)(2) of

this section, all prohibitions of § 17.31

will apply to the Chiricahua leopard

frog.

(2) What activities are allowed on

private or tribal land? Incidental take of

the Chiricahua leopard frog will not be

considered a violation of section 9 of the

Act, if the incidental take results from

livestock use of or maintenance

activities at livestock tanks located on

private or tribal lands. A livestock tank

is defined as an existing or future

impoundment in an ephemeral drainage

or upland site constructed primarily as

a watering site for livestock.

Dated: May 19, 2000.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 00–14972 Filed 6–13–00; 8:45 am]

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