Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Proposed Rules 31387 

project that FTA already measures as 

part of cost effectiveness? Should FTA 

consider the extent to which existing 

affordable housing and commercial 

space can be maintained in the corridor 

after implementation of a transit project 

there? 

10. Should economic development be 

a part of the cost effectiveness measure? 

Public Outreach Sessions 

The meetings listed below are the first 

two in a series of outreach sessions that 

will provide a forum for FTA staff to 

make oral presentations on this ANPRM 

and allow meeting attendees an 

opportunity to pose questions to the 

speakers. Additionally, the sessions are 

intended to encourage interested parties 

and stakeholders to submit their 

comments directly to the official docket 

per the instructions found in the 

ADDRESSES section of this notice. 

Further outreach sessions, once 

scheduled, will be announced in a 

subsequent Federal Register notice. 

The dates, times, and locations of the 

first two public outreach sessions are: 

(1) Monday, June 7, 4:30 pm to 6:30 pm, 

EST, 500 Fayetteville Street, Raleigh, 

NC 27601 (Marriott City Center Hotel), 

concurrent with the conference on 

‘‘Environment and Energy: Better 

Delivery of Better Transportation 

Solutions,’’ sponsored by the 

Transportation Research Board; (2) 

Tuesday, June 8, 2:30 pm to 4:30 pm, 

PST, Vancouver, British Columbia, 

Canada, 655 Burrard Street, Vancouver, 

British Columbia, Canada V6C 2R7 

(Hyatt Regency Hotel), concurrent with 

the ‘‘2010 Rail Conference’’ sponsored 

by the American Public Transportation 

Association. All locations are ADAaccessible. Individuals attending a 

meeting who are hearing or visually 

impaired and have special 

requirements, or a condition that 

requires special assistance or 

accommodations, should call Elizabeth 

Day, Office of Planning and 

Environment, at (202) 366–5159. 

Regulatory Notices 

All comments received on this 

ANPRM will be available for 

examination in the docket at http:// 

www.regulations.gov. 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This rulemaking is a significant 

regulatory action pursuant to section 

3(f) of Executive Order 12866 and the 

Regulatory Policies and Procedures of 

the Department of Transportation (44 FR 

11032). This ANPRM was reviewed by 

the Office of Management and Budget. 

Executive Order 12866 requires 

agencies to regulate in the ‘‘most costeffective manner,’’ to make a ‘‘reasoned 

determination that the benefits of the 

intended regulation justify its costs,’’ 

and to develop regulations that ‘‘impose 

the least burden on society.’’ Because 

this ANPRM does not contain specific 

proposals, it is not possible at this time 

to perform a cost-benefit analysis. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

of 1980 (5 U.S.C. 601 et seq.), FTA must 

consider whether a proposed rule would 

have a significant economic impact on 

a substantial number of small entities. 

‘‘Small entities’’ include small 

businesses, not-for-profit organizations 

that are independently owned and 

operated and are not dominant in their 

fields, and governmental jurisdictions 

with populations under 50,000. Because 

this ANPRM does not contain specific 

proposals, it is not possible to perform 

that analysis at this time. This ANPRM 

does, however, seek input from the 

public, including small entities, on the 

implementation of the New Starts and 

Small Starts programs, including what, 

if any, significant economic impacts 

might result. 

Executive Order 13132: Federalism 

Executive Order 13132 requires 

agencies to assure meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that may have a substantial, 

direct effect on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. This ANPRM asks 

questions about FTA’s implementation 

of the New Starts and Small Starts 

programs, and FTA specifically invites 

State and local governments with an 

interest in this rulemaking to provide 

feedback on those questions. 

Regulation Identifier Number (RIN) 

The U.S. DOT assigns a regulation 

identifier number (RIN) to each 

regulatory action listed in the Unified 

Agenda of Federal Regulations. The 

Regulatory Information Service Center 

publishes the Unified Agenda in April 

and October of each year. The RIN 

number contained in the heading of this 

document may be used to crossreference this action with the Unified 

Agenda. 

Issued in Washington, DC, this 1st day of 

June, 2010. 

Peter Rogoff, 

Administrator. 

[FR Doc. 2010–13423 Filed 6–1–10; 11:15 am] 

BILLING CODE 4910–57–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS- R4-ES-2010-0024]; 

[MO 92210-0-0009-B4] 

RIN 1018-AX25 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Mississippi Gopher Frog 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, propose to designate 

critical habitat for the Mississippi 

gopher frog (Rana sevosa) [= Rana 

capito sevosa] under the Endangered 

Species Act of 1973, as amended (Act). 

A total of 792 hectares (1,957 acres) in 

11 units are proposed for critical habitat 

designation. The proposed critical 

habitat is located within Forrest, 

Harrison, Jackson, and Perry Counties, 

Mississippi. 

DATES: We will consider comments from 

all interested parties until August 2, 

2010. We must receive requests for 

public hearings, in writing, at the 

address shown in the FOR FURTHER

INFORMATION CONTACT section by July 19, 

2010. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on Docket No. FWS-R4-ES-2010-0024. 

• U.S. mail or hand delivery: Public 

Comments Processing, Attn: FWS-R4- 

ES-2010-0024; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see Public 

Comments section below for more 

information). 

FOR FURTHER INFORMATION CONTACT: 

Stephen Ricks, Field Supervisor, U.S. 

Fish and Wildlife Service, Mississippi 

Fish and Wildlife Office, 6578 Dogwood 


srobinson on DSKHWCL6B1PROD with PROPOSALS
31388 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Proposed Rules 

View Parkway, Jackson, MS 39213; 

telephone: 601-321-1127; facsimile: 601- 

965-4340. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800-877-8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from governmental 

agencies, the scientific community, 

industry, or any other interested party 

concerning this proposed rule. We 

particularly seek comments concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including whether 

there are threats to the species from 

human activity, the degree of which can 

be expected to increase due to the 

designation, and whether the benefit of 

designation would be outweighed by 

threats to the species caused by the 

designation, such that the designation of 

critical habitat is not prudent. 

(2) Comments or information that may 

assist us in identifying or clarifying the 

physical and biological features 

essential to the conservation of the 

Mississippi gopher frog. 

(3) Specific information on: 

•The amount and distribution of 

Mississippi gopher frog habitat, 

•What areas occupied at the time of 

listing and that contain physical 

and biological features essential to 

the conservation of the species, 

•What special management 

considerations or protections may 

these features require, and 

•What areas not occupied at the time of 

listing are essential for the 

conservation of the species and 

why. 

(4) Land-use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat. 

(5) Any probable economic, national 

security, or other relevant impacts of 

designating any area that may be 

included in the final designation. We 

are particularly interested in any 

impacts on small entities (e.g., small 

businesses or small governments) or 

families, and the benefits of including or 

excluding areas that exhibit these 

impacts. 

(6) Whether any specific areas we are 

proposing as critical habitat should be 

considered for exclusion under section 

4(b)(2) of the Act, and whether the 

benefits of potentially excluding any 

specific area outweigh the benefits of 

including that area under section 4(b)(2) 

of the Act. 

(7) Information on any quantifiable 

economic costs or benefits of the 

proposed designation of critical habitat. 

(8) Information on the projected and 

reasonably likely impacts of climate 

change on the Mississippi gopher frog, 

and any special management needs or 

protections that may be needed in the 

critical habitat areas we are proposing. 

(9) Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

(10) The appropriateness of the 

taxonomic name change of the 

Mississippi gopher frog from Rana 

capito sevosa to Rana sevosa. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in the 

ADDRESSES section. We will not accept 

comments sent by e-mail or fax or to an 

address not listed in the ADDRESSES

section. 

We will post your entire comment— 

including your personal identifying 

information—on http:// 

www.regulations.gov. If your written 

comments provide personal identifying 

information, you may request at the top 

of your document that we withhold this 

information from public review. 

However, we cannot guarantee that we 

will be able to do so. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Mississippi Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

proposed rule. For more information on 

the Mississippi gopher frog, refer to the 

final rule listing the species as 

endangered, which was published in the 

Federal Register on December 4, 2001 

(66 FR 62993). See also the discussion 

of habitat in the Physical and Biological 

Features section below. 

Taxonomy and Nomenclature 

Subsequent to the listing of the 

Mississippi gopher frog, taxonomic 

research was completed which 

indicated that the listed entity is 

different from other gopher frogs and 

warrants acceptance as its own species, 

Rana sevosa (Young and Crother 2001, 

pp. 382-388). The herpetological 

scientific community has accepted this 

taxonomic change, and, as a result, we 

announce our intention to revise our 

List of Endangered and Threatened 

Wildlife to reflect this change in 

nomenclature. The common name for 

Rana sevosa used in the most recent 

taxonomic treatment for reptiles and 

amphibians is dusky gopher frog 

(Crother et al. 2003, p. 197). However, 

we will continue to use the common 

name, Mississippi gopher frog, to 

describe the listed entity in order to 

avoid confusion with some populations 

of the eastern Rana capito, for which the 

common name of dusky gopher frog is 

still popularly used. 

The subspecies, dusky gopher frog 

(Rana capito sevosa), originally 

described those gopher frogs occurring 

in western Florida, Alabama, 

Mississippi, and Louisiana. The listing 

at 50 CFR 17.11 is of a distinct 

population segment (DPS) representing 

those dusky gopher frogs occurring west 

of the Mobile and Tombigbee Rivers in 

Alabama, Mississippi, and Louisiana. 

As discussed above, taxonomic research 

has elevated the dusky gopher frog to 

full species status. Therefore, while we 

are proposing a change to the listing in 

50 CFR 17.11(h) to update the species 

name to Rana sevosa, the listed entity 

actually would not change; the same 

frogs would retain protection under the 

Act as an endangered species. We also 

propose to remove the State of Florida 

from the ‘‘Historical range’’ column of 

the table entry in 50 CFR 17.11(h) since 

this delineated the entire range, 

including unlisted portions, of the 

subspecies, Rana capito sevosa. The 

historic range column of the table entry 

in 50 CFR 17.11 (h) has been changed 

to reflect the historic range of the listed 

entity, Rana sevosa. As a result of the 

name change, the species occupying the 

eastern portion of the range that 

includes the State of Florida is the 

unlisted Rana capito. 

Geographic Range, Habitat, and Threats 

The Mississippi gopher frog has a 

very limited historical range in 

Alabama, Mississippi, and Louisiana. At 

the time of listing in 2001, this species 

occurred at only one site, Glen’s Pond, 

in the DeSoto National Forest in 

Harrison County, Mississippi (66 FR 

62993). Mississippi gopher frog habitat 

includes both upland sandy habitats— 

historically forest dominated by longleaf 

pine (Pinus palustris) —and isolated 

temporary wetland breeding sites 


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embedded within the forested 

landscape. Adult and subadult frogs 

spend the majority of their lives 

underground in active and abandoned 

gopher tortoise (Gopherus polyphemus) 

burrows, abandoned mammal burrows, 

and holes in and under old stumps 

(Richter et al. 2001, p. 318). Frequent 

fires are necessary to maintain the open 

canopy and ground cover vegetation of 

their aquatic and terrestrial habitat. The 

Mississippi gopher frog was listed as an 

endangered species due to its low 

population size and because of ongoing 

threats to the species and its habitat (66 

FR 62993). Primary threats to the 

species include urbanization and 

associated development and road 

building; fire suppression; two 

potentially fatal amphibian diseases 

known to be present in the population; 

and the demographic effects of small 

population size (66 FR 62993; Sisson 

2003, pp. 5, 9; Overstreet and Lotz 2004, 

pp. 1-13). 

Current Status 

Since the time of listing on December 

4, 2001, we have used information from 

surveys and reports prepared by the 

Alabama Department of Conservation 

and Natural Resources; Louisiana 

Department of Wildlife and Fisheries/ 

Natural Heritage Program; Mississippi 

Museum of Natural Science/Mississippi 

Department of Wildlife, Fisheries, and 

Parks; Mississippi gopher frog 

researchers; and Service data and 

records to search for additional 

locations occupied, or with the potential 

to be occupied, by the Mississippi 

gopher frog. After reviewing the 

available information from the areas in 

the three States that were historically 

occupied by the Mississippi gopher frog, 

we determined that most of the 

potential restorable habitat for the 

species occurred in Mississippi. 

Wetlands throughout the coastal 

counties of Mississippi have been 

identified by using U.S. Geological 

Survey topographic maps, National 

Wetland Inventory maps, Natural 

Resource Conservation Service county 

soil survey maps, and satellite imagery. 

Although historically the Mississippi 

gopher frog was commonly found in the 

coastal counties of Mississippi (Allen 

1932, p. 9; Neill 1957, p. 49), very few 

of the remaining ponds provide 

potential appropriate breeding habitat 

(Sisson 2003, p. 6). Field surveys 

conducted in Alabama and Louisiana 

have been unsuccessful in documenting 

the continued existence of Mississippi 

gopher frogs in these States (Pechmann 

et al. 2006, pp. 1-23; Bailey 2009, pp. 1- 

2). However, two new naturally 

occurring populations of the Mississippi 

gopher frog were found in Jackson 

County, Mississippi (Sisson 2004, p. 8). 

Due to the paucity of available suitable 

habitat for the Mississippi gopher frog, 

we have worked with our State, Federal, 

and nongovernmental partners to 

identify and restore upland and wetland 

habitats to create appropriate 

translocation sites for the species. We 

identified 15 ponds and associated 

forested uplands which we considered 

to have restoration potential. These sites 

occur on the DeSoto National Forest 

(Harrison, Forrest, and Perry Counties), 

the Ward Bayou Wildlife Management 

Area (Jackson County), and two 

privately owned sites (Jackson County). 

We have used Glen’s Pond and its 

surrounding uplands on the DeSoto 

National Forest, Harrison County, 

Mississippi, as a guide in our 

management efforts. Ongoing habitat 

management is being conducted at these 

areas to restore them as potential 

relocation sites for the Mississippi 

gopher frog. Habitat management at one 

of the privately owned sites (Unit 3) 

reached the point where we believed a 

translocation effort could be initiated. 

Tadpoles and metamorphic frogs have 

been released in 2004, 2005, 2007, and 

2008, at a pond restored for use as a 

breeding site (Sisson et al. 2008, p. 16). 

In December 2007, Mississippi gopher 

frogs were heard calling at the site, and 

one egg mass was discovered (Baxley 

and Qualls 2007, pp. 14-15). As a result, 

we consider this site to be currently 

occupied by the species, bringing the 

total number of currently occupied sites 

to four. 

Previous Federal Action 

The Mississippi gopher frog (Rana 

capito sevosa) distinct population 

segment of the gopher frog (Rana capito) 

(see Taxonomy and Nomenclature 

discussion above) was listed as an 

endangered species under the Act on 

December 4, 2001 (66 FR 62993). The 

Service found that designation of 

critical habitat was prudent at the time 

of listing. However, the development of 

a designation was deferred due to 

budgetary and workload constraints. 

On November 27, 2007, the Center for 

Biological Diversity and Friends of 

Mississippi Public Lands filed a lawsuit 

against the Service and the Secretary of 

the Interior for our failure to timely 

designate critical habitat for the 

Mississippi gopher frog (Friends of 

Mississippi Public Lands and Center for 

Biological Diversity v. Kempthorne (07- 

CV-02073)). In a court-approved 

settlement, the Service agreed to submit 

to the Federal Register a new prudency 

determination, and if the designation 

was found to be prudent, a proposed 

designation of critical habitat, by May 

30, 2010, and a final designation by May 

30, 2011. 

Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

under the Act are no longer necessary. 

Such methods and procedures include, 

but are not limited to, all activities 

associated with scientific resources 

management such as research, census, 

law enforcement, habitat acquisition 

and maintenance, propagation, live 

trapping, and transplantation, and, in 

the extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7(a)(2)of the Act through 

the prohibition against Federal agencies 

carrying out, funding, or authorizing the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) requires 

consultation on Federal actions that 

may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

non-Federal landowners. Where a 

landowner seeks or requests Federal 

agency funding or authorization for an 

action that may affect a listed species or 

critical habitat, the consultation 

requirements of section 7(a)(2) would 

apply, but even in the event of a 

destruction or adverse modification 


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finding, the obligation of the Federal 

action agency and the landowner is not 

to restore or recover the species, but to 

implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of critical habitat. 

To be considered for inclusion in a 

critical habitat designation, the habitat 

within the geographical area occupied 

by the species at the time it was listed 

must contain the physical and biological 

features essential to the conservation of 

the species. Areas supporting the 

essential physical or biological features 

are identified, to the extent known using 

the best scientific data available, as the 

habitat areas that provide essential life 

cycle needs of the species. Habitat 

within the geographical area occupied 

by the species at the time of listing that 

contains features essential to the 

conservation of the species meets the 

definition of critical habitat only if these 

features may require special 

management consideration or 

protection. Under the Act and 

regulations at 50 CFR 424.12, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed 

only when we determine that the best 

available scientific data demonstrate 

that those areas are essential for the 

conservation of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act (published in the Federal 

Register on July 1, 1994 (59 FR 34271)), 

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106-554; H.R. 

5658)), and our associated Information 

Quality Guidelines, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. In particular, we recognize that 

climate change may cause changes in 

the suitability of occupied habitat. 

Climate change may lead to increased 

frequency and duration of severe storms 

and droughts (McLauglin et al. 2002, p. 

6074; Golladay et al. 2004, p. 504; 

Seager et al. 2009, p. 5043). During a 

period of drought from 2004 to 2007, 

rainfall during the Mississippi gopher 

frog breeding season was insufficient to 

support recruitment of metamorphic 

frogs to the population (Sisson 2004, p. 

7; Sisson 2005, pp. 11-12; Baxley and 

Qualls 2006, pp. 7-9; Baxley and Qualls 

2007, p. 13). 

The information currently available 

on the effects of global climate change 

and increasing temperatures does not 

make sufficiently precise estimates of 

the location and magnitude of the 

effects. Nor are we currently aware of 

any climate change information specific 

to the habitat of the Mississippi gopher 

frog that would indicate what areas may 

become important to the species in the 

future. Therefore, we are unable to 

determine what additional areas, if any, 

may be appropriate to include in the 

proposed critical habitat for this species; 

however, we specifically request 

information from the public on the 

currently predicted effects of climate 

change on the Mississippi gopher frog 

and its habitat. Additionally, we 

recognize that critical habitat designated 

at a particular point in time may not 

include all of the habitat areas that we 

may later determine are necessary for 

the recovery of the species. For these 

reasons, a critical habitat designation 

does not signal that habitat outside the 

designated critical habitat area is 

unimportant or may not be required for 

recovery of the species. 

Areas that are important to the 

conservation of the species, but are 

outside the critical habitat designation, 

will continue to be subject to 

conservation actions we implement 

under section 7(a)(1) of the Act. Areas 

that support populations are also subject 

to the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available scientific information at the 

time of the agency action. Federally 

funded or permitted projects affecting 

listed species outside their designated 

critical habitat areas may still result in 

jeopardy findings in some cases. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), 

section 7 consultations, or other species 

conservation planning efforts if new 

information available at the time of 

these planning efforts calls for a 

different outcome. 

Prudency Determination 

Section 4(a)(3) of the Act, as 

amended, and implementing regulations 

(50 CFR 424.12) require that, to the 

maximum extent prudent and 

determinable, the Secretary designate 

critical habitat at the time the species is 

determined to be endangered or 

threatened. Our regulations at 50 CFR 

424.12(a)(1) state that the designation of 

critical habitat is not prudent when one 

or both of the following situations exist: 

(1) The species is threatened by taking 

or other activity and the identification 

of critical habitat can be expected to 

increase the degree of threat to the 

species; or (2) the designation of critical 

habitat would not be beneficial to the 

species. 

There is no documentation that the 

Mississippi gopher frog is threatened by 

taking or other human activity. In the 

absence of finding that the designation 

of critical habitat would increase threats 

to the species, if there are any benefits 

to a critical habitat designation, then a 

prudent finding is warranted. The 

potential benefits include: (1) Triggering 

consultation, under section 7 of the Act, 

in new areas for action in which there 

may be a Federal nexus where 

consultation would not otherwise occur, 

because, for example, an area is or has 

become unoccupied or the occupancy is 

in question; (2) identifying the physical 

and biological features essential to the 

Mississippi gopher frog and focusing 

conservation activities on these 

essential features and the areas that 

support them; (3) providing educational 

benefits to State or county governments 

or private entities engaged in activities 

or long-range planning in areas essential 

to the conservation of the species; and 

(4) preventing people from causing 

inadvertent harm to the species. 

Conservation of the Mississippi gopher 

frog and the essential features of the 

habitat will require habitat protection 

and restoration, which will be 

facilitated by knowledge of habitat 

locations and the physical and 

biological features of those habitats. 

Therefore, since we have determined 

that the designation of critical habitat 

will not likely increase the degree of 

threat to the species and may provide 

some measure of benefit, we find that 

the designation of critical habitat for the 

Mississippi gopher frog is prudent. 


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Critical Habitat Determinability 

As stated above, section 4(a)(3) of the 

Act requires the designation of critical 

habitat concurrently with the species’ 

listing ‘‘to the maximum extent prudent 

and determinable.’’ Our regulations at 50 

CFR 424.12(a)(2) state that critical 

habitat is not determinable when one or 

both of the following situations exist: 

(1) Information sufficient to perform 

required analyses of the impacts of the 

designation is lacking, or 

(2) The biological needs of the species 

are not sufficiently well known to 

permit identification of an area as 

critical habitat. 

When critical habitat is not 

determinable, the Act provides for an 

additional year to publish a critical 

habitat designation (16 U.S.C. 

1533(b)(6)(C)(ii)). 

We reviewed the available 

information pertaining to the biological 

needs of the Mississippi gopher frog, the 

historical distribution of the Mississippi 

gopher frog, and the habitat 

characteristics where they currently 

survive. This and other information 

represent the best scientific and 

commercial data available and led us to 

conclude that the designation of critical 

habitat is determinable for the 

Mississippi gopher frog. 

Methods 

As required by section 4(b) of the Act, 

we used the best scientific and 

commercial data available in 

determining which areas within the 

geographical area occupied by the 

species at the time of listing contain the 

physical and biological features 

essential to the conservation of the 

Mississippi gopher frog that may require 

special management considerations or 

protections, and which areas outside of 

the geographical area occupied at the 

time of listing are essential for the 

conservation of the species. 

We reviewed the available 

information pertaining to historical and 

current distributions, life histories, and 

habitat requirements of this species. Our 

sources included peer-reviewed 

scientific publications; unpublished 

survey reports; unpublished field 

observations by the Service, State, and 

other experienced biologists; notes and 

communications from qualified 

biologists or experts; Service 

publications such as the final listing 

rule for the Mississippi gopher frog; and 

Geographic Information System (GIS) 

data (such as species occurrence data, 

habitat data, land use, topography, 

digital aerial photography, and 

ownership maps). 

Physical and Biological Features 

In accordance with section 3(5)(A)(i) 

and 4(b)(1)(A) of the Act and the 

regulations at 50 CFR 424.12, in 

determining which areas within the 

geographical area occupied at the time 

of listing to propose as critical habitat, 

we consider the physical and biological 

features essential to the conservation of 

the species which may require special 

management considerations or 

protection. These include, but are not 

limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing of offspring; and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historic, geographical, and ecological 

distributions of a species. 

We consider the specific physical and 

biological features to be the primary 

constituent elements (PCEs; see 

‘‘Primary Constituent Elements’’ below) 

laid out in the appropriate quantity and 

spatial arrangement for the conservation 

of the species. We derive the PCEs 

required for the species from the 

biological needs of the Mississippi 

gopher frog as described in the 

Background section of this proposed 

rule and the final listing rule (66 FR 

62993). To identify the physical and 

biological features essential to the 

conservation of the Mississippi gopher 

frog, we have relied on current 

conditions at locations where the 

species survives, the limited 

information available on this species 

and its close relatives, as well as factors 

associated with the decline of other 

amphibians that occupy similar habitats 

in the lower Southeastern Coastal Plain 

(U.S. Fish and Wildlife Service 2001, 

pp. 62993-63002). 

Space for Individual and Population 

Growth and for Normal Behavior 

Mississippi gopher frogs are terrestrial 

amphibians endemic to the longleaf 

pine ecosystem. They spend most of 

their lives underground and occur in 

forested habitat consisting of firemaintained, open-canopied woodlands 

historically dominated by longleaf pine, 

with naturally occurring slash pine (P. 

elliotti) in wetter areas. Frequent fires 

also support a diverse ground cover of 

herbaceous plants, both in the uplands 

and in the breeding ponds (Hedman et 

al. 2000, p. 233; Kirkman et al. 2000, p. 

373). Historically, fire-tolerant longleaf 

pine dominated the uplands; however, 

much of the original habitat has been 

converted to pine (often loblolly (P. 

taeda) or slash pine) plantations and has 

become a closed-canopy forest 

unsuitable as habitat for gopher frogs 

(Roznik and Johnson 2009a, p. 265). 

During the breeding season, 

Mississippi gopher frogs leave their 

subterranean retreats in the uplands and 

migrate to their breeding sites during 

rains associated with passing cold 

fronts. Breeding sites are ephemeral 

(seasonally flooded) isolated ponds (not 

connected to other water bodies) located 

in the uplands. Both forested uplands 

and isolated wetlands (see further 

discussion of isolated wetlands in Sites 

for Breeding, Reproduction, and Rearing 

of Offspring section) are needed to 

provide space for individual and 

population growth and normal behavior. 

Few data are available on the distance 

between the wetland breeding and 

upland terrestrial habitats of post-larval 

and adult Mississippi gopher frogs. 

After breeding, adult Mississippi gopher 

frogs leave pond sites during major 

rainfall events. Richter et al. (2001, pp. 

316-321) used radio transmitters to track 

a total of 13 adult frogs at Glen’s Pond, 

the primary Mississippi gopher frog 

breeding site, located in Harrison 

County, Mississippi. The farthest 

movement recorded was 299 meters (m) 

(981 feet (ft)) by a frog tracked for 63 

days from the time of its exit from the 

breeding site (Richter et al. 2001, p. 

318). In Florida, closely related Florida 

gopher frogs (Rana capito aesopus) have 

been found up to 2 kilometers (km) (1.2 

miles (mi) from their breeding sites 

(Carr 1940, p. 64; Franz et al. 1988, p. 

82), although how frequently gopher 

frogs make these long-distance 

movements is not known (see 

discussion in Roznik et al. 2009, p. 192). 

It is difficult to interpret habitat use 

from the available movement data we 

have for the Mississippi gopher frog. 

However, we have calculated the area of 

a circle, using the value of 350 m (1,148 

ft) as the radius around a point 

represented by the breeding site, to 

define the area of habitat we believe 

would protect the majority of a 

Mississippi gopher frog population’s 

breeding and upland habitat. We chose 

the value of 350 m (1,148 ft) by using 

the known farthest distance movement 

for the Mississippi gopher frog of 299 m 

(rounded up to 300 m) and adding 50 m 

(164 ft) to this distance to minimize the 

edge effects of the surrounding land use 

as recommended by Semlitsch and 

Bodie (2003, pp. 1222-1223). Due to the 

low number of occupied sites for the 

species, we are conducting habitat 

management at potential relocation sites 


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with the hope of establishing new 

populations (see discussion above at 

Geographic Range, Habitat, Threats, 

and Status section). When possible, we 

are managing wetlands within 1,000 m 

(3,281 ft) of each other, in these areas, 

as a block in order to create multiple 

breeding sites and metapopulation 

structure (defined as neighboring local 

populations close enough to one another 

that dispersing individuals could be 

exchanged (gene flow) at least once per 

generation) in support of recovery 

(Marsh and Trenham 2001, p. 40; 

Richter et al. 2003, p. 177). 

Due to fragmentation and destruction 

of habitat, the current range of naturally 

occurring Mississippi gopher frogs has 

been reduced to three sites. In addition, 

the gopher tortoise, whose burrows are 

considered to be optimal terrestrial 

habitat for gopher frogs, is a rare and 

declining species that is listed as a 

threatened species under the Act within 

the range of the Mississippi gopher frog. 

Fragmentation of the frog’s habitat has 

subjected the species’ small, isolated 

populations to genetic isolation and 

reduction of space for reproduction, 

development of young, and population 

maintenance; thus, fragmentation has 

increased the likelihood of population 

extinction (U.S. Fish and Wildlife 

Service 2001, pp. 62993-63002). Genetic 

variation and diversity within a species 

are essential for recovery, adaptation to 

environmental changes, and long-term 

viability (capability to live, reproduce, 

and develop) (Harris 1984, pp. 93-107). 

Long-term viability is founded on the 

existence of numerous interbreeding 

local populations throughout the range 

(Harris 1984, pp. 93-107). Connectivity 

of Mississippi gopher frog breeding and 

nonbreeding habitat within the 

geographic area occupied by the species 

must be maintained to support the 

species’ survival (Semlitsch 2002, p. 

624; Harper et al. 2008, p. 1205). 

Additionally, connectivity of these sites 

with other areas outside the 

geographical area occupied currently by 

the Mississippi gopher frog is essential 

for the conservation of the species 

(Semlitsch 2002, p. 624; Harper et al. 

2008, p. 1205). 

Based on the biological information 

and needs discussed above, it is 

essential to protect ephemeral isolated 

ponds and associated forested uplands, 

and connectivity of these areas, to 

accommodate breeding, growth, and 

other normal behaviors of the 

Mississippi gopher frog and to promote 

genetic flow within the species. 

Food, Water, Air, Light, Minerals, or 

Other Nutritional or Physiological 

Requirements 

Mississippi gopher frog tadpoles eat 

periphyton (microscopic algae, bacteria, 

and protozoans) from surfaces of 

emergent vegetation or along the pond 

bottom, as is typical of pond-type 

tadpoles (Duellman and Trueb 1986, p. 

159). Juvenile and adult gopher frogs are 

carnivorous. Insects found in their 

stomachs have included carabid 

(Pasimachus sp.) and scarabaeid (genera 

Canthon sp. and Ligryus sp.) beetles 

(Netting and Goin 1942, p. 259) and 

Ceuthophilus crickets (Milstrey 1984, p. 

10). Mississippi gopher frogs are gapelimited (limited by the size of the jaw 

opening) predators with a diet probably 

similar to that reported for other gopher 

frogs, including frogs, toads, beetles, 

hemipterans, grasshoppers, spiders, 

roaches, and earthworms (Dickerson 

1906, p. 196; Carr 1940, p. 64). Within 

the pine uplands, a diverse and 

abundant herbaceous layer consisting of 

native species, maintained by frequent 

fires, is important to maintain the prey 

base for juvenile and adult Mississippi 

gopher frogs. Wetland water quality and 

an open canopy (Skelly et al. 2002, p. 

983) are important to the maintenance 

of the periphyton that serves as a food 

source for Mississippi gopher frog 

tadpoles. 

Based on the biological information 

and needs discussed above, we believe 

it is essential that Mississippi gopher 

frog habitat consist of ephemeral, 

isolated ponds with emergent 

vegetation, and open-canopied pine 

uplands with a diverse herbaceous 

layer, to provide for adequate food 

sources for the frog. 

Cover or Shelter 

Amphibians need to maintain moist 

skin for respiration (breathing) and 

osmoregulation (controlling the 

amounts of water and salts in their 

bodies) (Duellman and Trueb 1986, pp. 

197-222). Since Mississippi gopher frogs 

disperse from their aquatic breeding 

sites to the uplands where they live as 

adults, desiccation (drying out) can be a 

limiting factor in their movements. 

Thus, it is important that areas 

connecting their wetland and terrestrial 

habitats are protected in order to 

provide cover and appropriate moisture 

regimes during their migration. Richter 

et al. (2001, pp. 317-318) found that 

during migration, Mississippi gopher 

frogs used clumps of grass or leaf litter 

for refuge. Protection of this connecting 

habitat may be particularly important 

for juveniles as they move out of the 

breeding pond for the first time. Studies 

of migratory success in postmetamorphic amphibians have 

demonstrated the importance of high 

levels of survival of these individuals to 

population maintenance and persistence 

(Rothermel 2004, pp. 1544-1545). 

Both adult and juvenile Mississippi 

gopher frogs spend most of their lives 

underground in forested uplands 

(Richter et al. 2001, p. 318). 

Underground retreats include gopher 

tortoise burrows, small mammal 

burrows, stump holes, and root mounds 

of fallen trees (Richter et al. 2001, p. 

318). Availability of appropriate 

underground sites is especially 

important for juveniles in their first 

year. Survival of juvenile gopher frogs 

in north-central Florida was found to be 

dependent on their use of underground 

refugia (Roznik and Johnson 2009b, p. 

431). Mortality for a frog occupying an 

underground refuge was estimated to be 

only four percent of the likelihood of 

mortality for a frog not occupying an 

underground refuge (Roznik and 

Johnson 2009b, p. 434). 

Based on the biological information 

and needs discussed above, we believe 

it is essential that Mississippi gopher 

frog habitat have appropriate 

connectivity habitat between wetland 

and upland sites to support survival 

during migration. Additionally, we 

believe it is essential that non-wetland 

habitats contain a variety of 

underground retreats such as gopher 

tortoise burrows, small mammal 

burrows, stump holes, and root mounds 

of fallen trees to provide cover and 

shelter for the Mississippi gopher frog. 

Sites for Breeding, Reproduction, or 

Rearing 

Mississippi gopher frog breeding sites 

are isolated ponds that dry completely 

on a cyclic basis. Faulkner (66 FR 

62994) conducted hydrologic research at 

the Glen’s Pond site on DeSoto National 

Forest, Harrison County, Mississippi. He 

described the pond as a depressional 

feature on a topographic high. The 

dominant source of water to the pond is 

rainfall within a small, localized 

watershed that extends 61 to 122 m (200 

to 400 ft) from the pond’s center. 

Substantial winter rains are needed to 

ensure that the pond fills sufficiently to 

allow hatching, development, and 

metamorphosis (change to adults) of 

larvae. The timing and frequency of 

rainfall are critical to the successful 

reproduction and recruitment of 

Mississippi gopher frogs. Adult frogs 

move to wetland breeding sites during 

heavy rain events, usually from January 

to late March (Richter and Seigel 2002, 

p. 964). Studies at Glen’s Pond indicate 

that this breeding pond is 


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approximately 1.5 hectares (ha) (3.8 

acres (ac)) when filled and attains a 

maximum depth of 1.1 m (3.6 ft) 

(Thurgate and Pechmann 2007, p. 1846). 

The pond is hard-bottomed, has an open 

canopy, and contains emergent and 

submergent vegetation. It is especially 

important that a breeding pond have an 

open canopy: though the mechanism is 

unclear, it is believed an open canopy 

is critical to tadpole development. 

Experiments conducted by Thurgate and 

Pechmann (2007, pp. 1845-1852) 

demonstrated the lethal and sublethal 

effects of canopy closure on Mississippi 

gopher frog tadpoles. The general 

habitat attributes of the other three 

Mississippi gopher frog breeding ponds 

are similar to those of Glen’s Pond. 

Female Mississippi gopher frogs attach 

their eggs to rigid vertical stems of 

emergent vegetation (Young 1997, p. 

48). Breeding ponds typically dry in 

early to mid-summer, but on occasion 

have remained wet until early fall 

(Richter and Seigel 1998, p. 24). 

Breeding ponds of closely related 

gopher frogs in Alabama and Florida 

have similar structure and function to 

those of the Mississippi gopher frog 

(Bailey 1990, p. 29; Palis 1998, p. 217; 

Greenberg 2001, p. 74). 

An unpolluted wetland with water 

free of predaceous fish, sediment, 

pesticides, and chemicals associated 

with road runoff is important for egg 

development, tadpole growth and 

development; and successful mating 

and egg-laying by adult frogs. 

Based on the biological information 

and needs discussed above, we believe 

that in order to provide for breeding and 

development of the species, it is 

essential that Mississippi gopher frog 

habitat contain isolated ponds with hard 

bottoms, open canopies, and emergent 

vegetation, and water free of predaceous 

fish, sediment, pesticides, and 

chemicals associated with road runoff. 

In summary, based on the biological 

information and needs described above, 

essential Mississippi gopher frog habitat 

consists of upland forested terrestrial 

habitat, maintained by frequent fires, 

and unpolluted isolated wetland 

breeding sites, and the connectivity of 

these sites, to accommodate feeding, 

breeding, growth, and other normal 

behaviors of the Mississippi gopher frog 

and to promote genetic flow within the 

species. 

Based on our current knowledge of 

life history, biology, and ecology of the 

Mississippi gopher frog and the 

requirements of the habitat to sustain 

the essential life history functions of the 

species, we determined that the PCEs 

specific to the Mississippi gopher frog 

are: 

(1) Breeding ponds, geographically 

isolated from other waterbodies and 

embedded in forests historically 

dominated by longleaf pine 

communities, that are small (generally 

<0.4 to 4.0 hectares (ha) (<1 to 10 acres 

(ac)), ephemeral, and acidic. Specific 

conditions necessary in breeding ponds 

to allow for successful reproduction of 

Mississippi gopher frogs are: An open 

canopy with emergent herbaceous 

vegetation for egg attachment; an 

absence of large, predatory fish which 

prey on frog larvae; water quality such 

that frogs, their eggs, or larvae are not 

exposed to pesticides or chemicals and 

sediment associated with road runoff; 

and surface water that lasts for a 

minimum of 195 days during the 

breeding season to allow a sufficient 

period for larvae to hatch, mature, and 

metamorphose. 

(2) Upland forested nonbreeding 

habitat historically dominated by 

longleaf pine, adjacent and accessible to 

and from breeding ponds, that is 

maintained by fires frequent enough to 

support an open canopy and abundant 

herbaceous ground cover and gopher 

tortoise burrows, small mammal 

burrows, stump holes, or other 

underground habitat that the 

Mississippi gopher frog depends upon 

for food, shelter, and protection from 

the elements and predation; and 

(3) Accessible upland connectivity 

habitat between breeding and 

nonbreeding habitats which allows for 

Mississippi gopher frog movements 

between and among such sites and that 

is characterized by an open canopy and 

abundant native herbaceous species and 

subsurface structure which provides 

shelter for Mississippi gopher frogs 

during seasonal movements, such as 

that created by deep litter cover, clumps 

of grass, or burrows. 

Critical habitat was delineated as 

described above using the value of 350 

m (1,148 ft) as the radius around a point 

represented by the breeding site, to 

define the area of habitat we believe 

would protect the majority of a 

Mississippi gopher frog population’s 

breeding and upland habitat. We chose 

the value of 350 m (1,148 ft) by using 

the known farthest distance movement 

for the Mississippi gopher frog of 299 m 

(rounded up to 300 m) and adding 50 m 

(164 ft) to this distance to minimize the 

edge effects of the surrounding land use 

as recommended by Semlitsch and 

Bodie (2003, pp. 1222-1223). When 

possible, we are managing wetlands 

within 1,000 m (3,281 ft) of each other, 

in these areas, as a block in order to 

create multiple breeding sites and 

metapopulation structure (defined as 

neighboring local populations close 

enough to one another that dispersing 

individuals could be exchanged (gene 

flow) at least once per generation) in 

support of recovery (Marsh and 

Trenham 2001, p. 40; Richter et al. 

2003, p. 177). 

With this proposed designation of 

critical habitat, we intend to conserve 

the physical and biological features 

essential to the conservation of the 

species, through the identification of the 

appropriate quantity and spatial 

arrangement of the PCEs sufficient to 

support the life history functions of the 

species. Each of the areas proposed as 

critical habitat in this rule contains 

sufficient PCEs to provide for one or 

more of the life history functions of the 

Mississippi gopher frog. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain 

physical and biological features that are 

essential to the conservation of the 

species and whether those features may 

require special management 

considerations or protection. 

The essential physical and biological 

features within the area we are 

proposing for designation as critical 

habitat that is within the geographical 

area occupied by the species at the time 

it was listed, will require some level of 

management to address the current and 

future threats. This area of proposed 

critical habitat is not presently under 

special management or protection 

provided by a legally operative plan or 

agreement for the conservation of the 

Mississippi gopher frog. Various 

activities in or adjacent to this area of 

proposed critical habitat may affect one 

or more of the PCEs. For example, 

features in this proposed critical habitat 

designation may require special 

management due to threats posed by 

land use conversions, primarily urban 

development and conversion to 

agriculture and pine plantations; stump 

removal and other soil-disturbing 

activities which destroy the belowground structure within forest soils; fire 

suppression and low fire frequencies; 

wetland destruction and degradation; 

random effects of drought or floods; offroad vehicle use; gas, water, electrical 

power, and sewer easements; and 

activities which disturb underground 

refugia used by Mississippi gopher frogs 

for foraging, protection from predators, 

and shelter from the elements. Other 

activities that may affect PCEs in the 

proposed critical habitat units include 

those listed in the Effects of Critical 

Habitat Designation section below. 


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The designation of critical habitat 

does not imply that lands outside of 

critical habitat do not play an important 

role in the conservation of the 

Mississippi gopher frog. Activities with 

a Federal nexus that may affect areas 

outside of critical habitat, such as 

development; road construction and 

maintenance; and gas, water, electrical 

power, and sewer easements and/or 

pipelines, are still subject to review 

under section 7 of the Act if they may 

affect the Mississippi gopher frog, 

because Federal agencies must consider 

both effects to the species and effects to 

critical habitat independently. The 

Service should be consulted for 

disturbances to areas both within the 

proposed critical habitat units as well as 

outside the proposed critical habitat 

designation in other geographic areas 

within the historical range of the 

Mississippi gopher frog where the 

species may still persist. The 

prohibitions of section 9 of the Act 

against the take of listed species also 

continue to apply both inside and 

outside of designated critical habitat. 

Criteria Used to Identify Proposed 

Critical Habitat 

Using the best scientific and 

commercial data available, as required 

by section 4(b) of the Act, we identified 

those areas to propose for designation as 

critical habitat, within the geographical 

area occupied by the species at the time 

of listing, that contain those physical 

and biological features essential to the 

conservation of the Mississippi gopher 

frog and which may require special 

management considerations or 

protection. We also considered the area 

outside the geographical area occupied 

by the species at the time of listing that 

is essential for the conservation of the 

Mississippi gopher frog. Many of the 

areas we considered for inclusion are 

part of ongoing recovery initiatives for 

this species. 

We used the best scientific data 

available in determining areas that 

contain the features that are essential to 

the conservation of the Mississippi 

gopher frog that are those physical and 

biological features laid out in the 

appropriate quantity and spatial 

arrangement for the conservation of the 

species (see the Physical and Biological 

Features section). We are proposing to 

designate as critical habitat one site 

within the geographical area that was 

occupied by the Mississippi gopher frog 

at the time of listing, and which is 

known to be currently occupied. We are 

also proposing to designate additional 

areas, both currently occupied and 

unoccupied, as critical habitat. We have 

determined that these areas, which are 

outside the geographical area occupied 

by the species at the time of listing, are 

essential to the conservation of the 

species because they provide additional 

habitat for maintenance of newly 

discovered populations and for 

population expansion which is needed 

to conserve the Mississippi gopher frog. 

We began our critical habitat analysis 

by evaluating the Mississippi gopher 

frog in the context of its historic 

distribution to determine what portion 

of its range still contains the physical 

and biological features that are essential 

to the conservation of the species. We 

assessed the critical life-history 

components of the Mississippi gopher 

frog, as they relate to habitat. 

Mississippi gopher frogs require small, 

acidic, depressional standing bodies of 

freshwater for breeding, upland pine 

forested habitat that has an open canopy 

maintained by fire for non-breeding 

habitat, and upland connectivity habitat 

areas that allow for movement between 

nonbreeding and breeding sites. 

To determine which areas should be 

designated as critical habitat, we 

evaluated the essential physical and 

biological features of Mississippi gopher 

frog habitat as it exists within the 

currently occupied habitat. As 

discussed above, we considered the 

following criteria in the selection of 

areas that contain the essential features 

for the Mississippi gopher frog when 

designating units: (1) The historic 

distribution of the species; (2) presence 

of open-canopied, isolated wetlands; (3) 

presence of open-canopied, upland pine 

forest in sufficient quantity around each 

wetland location to allow for sufficient 

survival and recruitment to maintain a 

breeding population over the long term; 

(4) open-canopied, forested connectivity 

habitat between wetland and upland 

sites; and (5) multiple isolated wetlands 

in upland habitat that would allow for 

the development of metapopulations. 

Currently Occupied Habitat Proposed as 

Critical Habitat 

As discussed above, currently 

occupied habitat for the Mississippi 

gopher frog is limited to four sites: One 

location on the DeSoto National Forest, 

Harrison County, Mississippi; one site 

on State land in Jackson County, 

Mississippi; and two sites on private 

land in Jackson County, Mississippi. 

Only the Harrison County site was 

occupied at the time of listing, while the 

remaining sites were found to be 

occupied, or became occupied, after the 

date of listing. We believe that all 

currently occupied areas contain those 

physical and biological features 

essential to the conservation of these 

species which may require special 

management considerations or 

protection and are themselves essential 

to the conservation of the species. 

Currently Unoccupied Habitat Proposed 

as Critical Habitat 

The currently occupied habitat of the 

Mississippi gopher frog is highly 

localized and fragmented. With such 

limited distribution, the Mississippi 

gopher frog is at high risk of extinction 

and highly susceptible to stochastic 

events. Pond-breeding amphibians are 

particularly susceptible to drought, as 

breeding cannot occur if breeding ponds 

do not receive adequate rainfall. Isolated 

populations, such as these of the 

Mississippi gopher frog, are highly 

susceptible to random events. Protection 

of a single, isolated, minimally viable 

population risks the extirpation or 

extinction of a species as a result of 

harsh environmental conditions, 

catastrophic events, or genetic 

deterioration over several generations 

(Kautz and Cox 2001, p. 59). To reduce 

the risk of extinction through these 

processes, it is important to establish 

multiple protected subpopulations 

across the landscape (Soule ́ and 

Simberloff 1986, pp. 25-35; Wiens 1996, 

pp. 73-74). 

We used information from surveys 

and reports prepared by the Alabama 

Department of Conservation and Natural 

Resources; Mississippi Department of 

Wildlife, Fisheries, and Parks; and 

Mississippi gopher frog researchers, 

along with Service data and records, to 

search for additional locations with the 

potential to be occupied by the 

Mississippi gopher frog. Habitat in 

Alabama and Louisiana is severely 

limited, so our focus was on identifying 

sites in Mississippi. Wetlands 

throughout the coastal counties of 

Mississippi were identified using U.S. 

Geological Survey topographic maps, 

National Wetland Inventory maps, 

Natural Resource Conservation Service 

county soil survey maps, and satellite 

imagery. Habitat with the best potential 

of establishing the physical and 

biological features essential to the 

conservation of the Mississippi gopher 

frog were concentrated on the DeSoto 

National Forest in Forrest, Harrison, and 

Perry Counties in southern Mississippi. 

Some additional sites were found in 

Jackson County on Federal land being 

managed by the State as a Wildlife 

Management Area and on private land 

being managed as a wetland mitigation 

bank. Habitat restoration efforts have 

been successful in establishing at least 

one of the PCEs on each of these sites, 

and management is continuing, with the 

goal of establishing all of the PCEs at all 

of the sites. 


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The currently unoccupied sites that 

we are proposing as critical habitat are 

all within the historical range of the 

Mississippi gopher frog. We believe that 

the designation of additional areas not 

known to be currently occupied is 

essential for the conservation of the 

Mississippi gopher frog. The range of 

the Mississippi gopher frog has been 

severely curtailed, occupied habitats are 

limited and isolated, and population 

sizes are extremely small. While the 

four occupied units provide habitat for 

current populations, they may be at risk 

of extirpation and extinction from 

stochastic events that occur as periodic 

natural events or existing or potential 

human-induced events (U.S. Fish and 

Wildlife Service 2001, pp. 62993- 

63002). The inclusion of essential 

unoccupied areas will provide habitat 

for population translocation and will 

decrease the risk of extinction of the 

species. Based on the best scientific 

data, we believe that these areas not 

currently occupied by the Mississippi 

gopher frog are essential for the 

conservation of the species. 

We have determined that, with proper 

protection and management, the areas 

we are proposing for critical habitat are 

adequate for the conservation of the 

species based on our current 

understanding of the species’ 

requirements. However, as discussed in 

the Critical Habitat section above, we 

recognize that designation of critical 

habitat may not include all habitat areas 

that we may eventually determine are 

necessary for the recovery of the species 

and that for this reason, a critical habitat 

designation does not signal that habitat 

outside the designated area is 

unimportant or may not promote the 

recovery of the species. 

We delineated the critical habitat unit 

boundaries using the following steps: 

(1) We used digital aerial photography 

using ArcMap 9.3.1 to map the specific 

location of the breeding site occupied by 

the Mississippi gopher frog at the time 

of listing, and those locations of 

potential breeding sites outside the 

geographical area occupied by the 

species at the time it was listed, both 

occupied and not occupied, that were 

determined to be essential for the 

conservation of the species. 

(2) We delineated proposed critical 

habitat areas by buffering the above 

locations by a distance of 350 m (1,148 

ft) where possible to incorporate all 

PCEs within the critical habitat 

boundaries. 

(3) We used aerial imagery and 

ArcMap to connect critical habitat areas 

within 1,000 m (3,281 ft) of each other 

to create metapopulation structure 

where possible. 

When determining proposed critical 

habitat boundaries, we made every 

effort to avoid including developed 

areas, such as lands covered by 

buildings, roads, and other structures, 

because such lands lack PCEs for the 

Mississippi gopher frog. The scale of the 

maps we prepared under the parameters 

for publication within the Code of 

Federal Regulations may not reflect the 

exclusion of such developed lands. Any 

such lands inadvertently left inside 

critical habitat boundaries shown on the 

maps of this proposed rule have been 

excluded by text in the proposed rule 

and are not proposed for designation as 

critical habitat. Therefore, Federal 

action involving these lands would not 

trigger section 7 consultation with 

respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the physical and biological features in 

the adjacent critical habitat. 

Proposed Critical Habitat Designation 

We are proposing to designate 11 

units totaling approximately 792 ha 

(1,957 ac) as critical habitat for the 

Mississippi gopher frog. The critical 

habitat areas described below constitute 

our best assessment of areas that 

currently meet the definition of critical 

habitat for the Mississippi gopher frog. 

Table 1 identifies the proposed units for 

the species and shows the occupancy of 

the subunits within the proposed 

designated areas. 

TABLE 1. OCCUPANCY OF MISSISSIPPI GOPHER FROG PROPOSED CRITICAL HABITAT UNITS WITH AREA ESTIMATES

(HECTARES (HA) AND ACRES (AC)). TOTALS MAY NOT MATCH DUE TO ROUNDING. 

Unit County Occupied at Time of 

Listing 

Currently Occupied 

(but not known to be 

occupied at the time 

of listing) 

Currently Unoccupied Total Unit Area 

1 Harrison 39 ha (96 ac) 238 ha (588 ac) 277 ha (685 ac) 

2 Harrison 39 ha (96 ac) 39 ha (96 ac) 

3 Jackson 39 ha (96 ac) 72 ha (178 ac) 111 ha (274 ac) 

4 Jackson 39 ha (96 ac) 28 ha (69 ac) 67 ha (166 ac) 

5 Jackson 39 ha (96 ac) 39 ha (96 ac) 

6 Jackson 39 ha (96 ac) 39 ha (96 ac) 

7 Forrest 39 ha (96 ac) 39 ha (96 ac) 

8 Forrest 39 ha (96 ac) 39 ha (96 ac) 

9 Perry 64 ha (158 ac) 64 ha (158 ac) 

10 Perry 39 ha (96 ac) 39 ha (96 ac) 

11 Perry 39 ha (96 ac) 39 ha (96 ac) 

All Units All Counties 39 ha (96 ac) 117 ha (289 ac) 636 ha (1,572 ac) 792 ha (1,957 ac) 

Table 2 provides the approximate area 

and ownership encompassed within 

each critical habitat unit determined to 

meet the definition of critical habitat for 

the Mississippi gopher frog. Hectare and 

acre values were individually computerVerDate Mar<15>2010 16:31 Jun 02, 2010 Jkt 220001 PO 00000 Frm 00073 Fmt 4702 Sfmt 4702 E:\FR\FM\03JNP1.SGM 03JNP1

srobinson on DSKHWCL6B1PROD with PROPOSALS
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generated using GIS software, rounded to nearest whole number, and then 

summed. 

TABLE 2. PROPOSED CRITICAL HABITAT UNITS WITH AREA ESTIMATES (HECTARES (HA) AND ACRES (AC)) AND LAND

OWNERSHIP FOR THE MISSISSIPPI GOPHER FROG. TOTALS MAY NOT MATCH DUE TO ROUNDING. 

Unit County 

Ownership 

Total Area 

Federal State Private 

1 Harrison 273 ha(675 ac) 4 ha (10 ac) 277 ha (685 ac) 

2 Harrison 39 ha (96 ac) 39 ha (96 ac) 

3 Jackson 111 ha (274 ac) 111 ha (274 ac) 

4 Jackson 67 ha (166 ac) 67 ha (166 ac) 

5 Jackson 39 ha (96 ac) 39 ha (96 ac) 

6 Jackson 39 ha (96 ac) 39 ha (96 ac) 

7 Forrest 39 ha (96 ac) 39 ha (96 ac) 

8 Forrest 39 ha (96 ac) 39 ha (96 ac) 

9 Perry 56 ha (138 ac) 8 ha (20 ac) 64 ha (158 ac) 

10 Perry 39 ha (96 ac) 39 ha (96 ac) 

11 Perry 39 ha (96 ac) 39 ha (96 ac) 

Total All Counties 563 ha (1,391 ac) 39 ha (96 ac) 190 ha (470 ac) 792 ha (1,957 ac) 

We present brief descriptions of each 

unit and reasons why they meet the 

definition of critical habitat below. 

Unit 1: Harrison County, Mississippi 

Unit 1 encompasses 277 ha (685 ac) 

on Federal and private lands in Harrison 

County, Mississippi. This unit, between 

U.S. Hwy. 49 and Old Hwy. 67, is 

approximately 0.9 km (0.56 mi) north of 

the Biloxi River. It is located 

approximately 3.2 km (2 mi) east of U.S. 

Hwy. 49 and approximately 2.8 km 

(1.75 mi) west of Old Hwy. 67. Within 

this unit, approximately 273 ha (675 ac) 

are in the DeSoto National Forest and 4 

ha (10 ac) are in private ownership. 

Thirty-nine ha (96 ac) of Unit 1 are 

located around the only breeding pond 

(Glen’s Pond) known for the Mississippi 

gopher frog when it was listed in 2001 

and, as such, are within the 

geographical area of the species 

occupied at the time of listing. Glen’s 

Pond and the habitat surrounding it, the 

majority of which is on the DeSoto 

National Forest, support most of the 

known Mississippi gopher frog 

populations. Threats to the Mississippi 

gopher frog and its habitat in areas of 

Unit 1, within the geographical area of 

the species occupied at the time of 

listing, that may require special 

management and protection of PCEs 1, 

2, and 3, include the potential of: Fire 

suppression and low fire frequencies; 

detrimental alterations in forestry 

practices that could destroy belowground soil structures such as stump 

removal; hydrologic changes resulting 

from ditches, and/or adjacent highways 

and roads that could alter the ecology of 

the breeding pond and surrounding 

terrestrial habitat; wetland degradation; 

random effects of drought or floods; offroad vehicle use; and gas, water, 

electrical power, and sewer easements. 

On portions of Unit 1 within the 

geographical area of the species 

occupied at the time of listing, and 

within private ownership, special 

management is needed to address the 

threats of direct agricultural and urban 

development (see also discussion in 

Special Management Considerations or 

Protections section). 

Most of Unit 1 (238 ha (588 ac)) is 

currently unoccupied. However, this 

unoccupied area consists of areas, 

within 1,000 m (3,281 ft) of each other 

or Glen’s Pond, that we believe will 

create metapopulation structure and 

protect the Mississippi gopher frog from 

extinction. The unoccupied area 

surrounds three ponds on the DeSoto 

National Forest given the names of 

Reserve Pond, Pony Ranch Pond, and 

New Pond during on-going recovery 

initiatives. The U.S. Forest Service is 

actively managing this area to benefit 

the recovery of the Mississippi gopher 

frog. Due to its low number of remaining 

populations and severely restricted 

range, the Mississippi gopher frog is at 

high risk of extirpation for stochastic 

events, such as disease or drought. 

Maintaining this area as suitable habitat 

into which Mississippi gopher frogs 

could be translocated is essential to 

decrease the risk of extinction of the 

species resulting from stochastic events 

and provide for the species’ eventual 

recovery. We determined that this area 

is essential to the conservation of the 

species because the ponds (PCE 1) and 

the surrounding uplands (PCEs 2 and 3) 

are suitable habitat within the dispersal 

range of the Mississippi gopher frog and 

thus provide the potential of 

establishing new breeding ponds and 

metapopulation structure which will 

support recovery of the species. 

Unit 2: Harrison County, Mississippi 

Unit 2 encompasses 39 ha (96 ac) on 

Federal land in Harrison County, 

Mississippi. This unit is located on the 

DeSoto National Forest approximately 8 

km (5 mi) east of Old Hwy. 67 and 

approximately 8.5 km (5.3 mi) southeast 

of the community of Success. 

Unit 2 is not within the geographic 

range of the species occupied at the time 

of listing and is currently unoccupied. 

This area surrounds a pond on the 

DeSoto National Forest given the name 

of Carr Bridge Road Pond during 

ongoing recovery initiatives when it was 

selected as a Mississippi gopher frog 

translocation site. The U.S. Forest 

Service is actively managing this area to 


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benefit the recovery of the Mississippi 

gopher frog. Due to its low number of 

remaining populations and severely 

restricted range, the Mississippi gopher 

frog may be at risk of extirpation for 

stochastic events, such as disease or 

drought. Maintaining this area as 

suitable habitat into which Mississippi 

gopher frogs could be translocated is 

essential to decrease the potential risk of 

extinction of the species resulting from 

stochastic events and provide for the 

species’ eventual recovery. We 

determined that this area is essential to 

the conservation of the Mississippi 

gopher frog because it contains features 

essential to the conservation of the 

species, a potential breeding pond (PCE 

1) and the surrounding uplands (PCEs 2 

and 3), that provide habitat for future 

translocation of the species in support 

of Mississippi gopher frog recovery. 

Unit 3: Jackson County, Mississippi 

Unit 3 encompasses 111 ha (274 ac) 

on private land in Jackson County, 

Mississippi. This unit is located 

approximately 0.3 km (0.2 mi) north of 

Interstate 10 and approximately 1.6 km 

(1 mi) west of State Hwy. 57. 

Unit 3 is not within the geographic 

range of the species occupied at the time 

of listing and contains both areas that 

are currently occupied and areas that 

are currently unoccupied. Thirty-nine 

ha (96 ac) of Unit 3 are currently 

occupied as a result of translocation 

efforts conducted in 2004, 2005, 2007, 

and 2008. Seventy-two 72 ha (178 ac) of 

Unit 3 are currently unoccupied. Unit 3 

consists of three ponds and their 

surrounding upland areas and is on 

private land being managed as a 

wetland mitigation bank. It is within the 

acquisition boundary of the Mississippi 

Sandhill Crane National Wildlife Refuge 

and actively being managed by the 

landowners to benefit the recovery of 

the Mississippi gopher frog. Due to its 

low number of remaining populations 

and severely restricted range, the 

Mississippi gopher frog may be at risk 

of extirpation for stochastic events, such 

as disease or drought. Maintaining this 

area as suitable habitat into which 

Mississippi gopher frogs could be 

translocated is essential to decrease the 

potential risk of extinction of the 

species resulting from stochastic events 

and provide for the species’ eventual 

recovery. We determined that this area 

is essential to the conservation of the 

species because the pond (PCE 1) and 

the surrounding uplands (PCEs 2 and 3) 

have proven to be suitable habitat for 

establishing a Mississippi gopher frog 

population, this area also provides 

additional breeding ponds (PCE 1) and 

surrounding uplands (PCEs 2 and 3) 

which are suitable habitats within the 

dispersal range of the occupied site, and 

this area also provides metapopulation 

structure which will support recovery of 

the species. 

Unit 4: Jackson County, Mississippi 

Unit 4 encompasses 67 ha (ac) on 

private land in Jackson County, 

Mississippi. This unit is located 

approximately 10.8 km (6.8 mi) north of 

Interstate 10. It is 0.47 km (0.3 mi) north 

of Jim Ramsey Road, approximately 3.4 

km (2 mi) west of State Hwy. 57 and 6.2 

km (3.9 mi) west of the community of 

Vancleave. 

Unit 4 is not within the geographic 

range of the species occupied at the time 

of listing and contains both areas that 

are currently occupied and areas that 

are currently unoccupied. Thirty-nine 

ha (96 ac) of Unit 4 are located around 

a breeding pond, designated Mike’s 

Pond, that was discovered to be 

occupied in 2004, subsequent to the 

listing of the Mississippi gopher frog. 

The remaining balance (28 ha (69 ac)) of 

Unit 4 is not currently occupied. This 

portion of Unit 4 contains an additional 

pond which represents a potential 

Mississippi gopher frog breeding site 

and also connectivity habitat between it 

and Mike’s Pond. Unit 4 is being 

actively managed by the landowners to 

benefit the recovery of the Mississippi 

gopher frog. Due to its low number of 

remaining populations and severely 

restricted range, the Mississippi gopher 

frog may be at risk of extirpation from 

stochastic events, such as disease or 

drought. Maintaining this area of 

occupied habitat, and suitable habitat 

into which Mississippi gopher frogs 

could be translocated, is essential to 

decrease the potential risk of extinction 

of the species resulting from stochastic 

events and provide for the species’ 

eventual recovery. We determined that 

this area is essential to the conservation 

of the species because it represents 

habitat naturally occupied by the 

Mississippi gopher frog (PCEs 1, 2, and 

3), and provides an additional pond 

(PCE 1) and surrounding uplands (PCEs 

2 and 3) which are suitable habitats 

within the dispersal range of the 

occupied site. Thus, this area provides 

for the potential establishment of a new 

breeding pond and metapopulation 

structure which will support recovery of 

the species. 

Unit 5: Jackson County, Mississippi 

Unit 5 encompasses 39 ha (96 ac) on 

Federal land in Jackson County, 

Mississippi. This unit is located on the 

Ward Bayou Wildlife Management Area 

(WMA) approximately 5.2 km (3.3 mi) 

northeast of State Hwy. 57 and the 

community of Vancleave. This land is 

owned by the Army Corps of Engineers 

(Corps) and managed by the Mississippi 

Department of Wildlife, Fisheries, and 

Parks (MDWFP). 

Unit 5 is not within the geographic 

range of the species occupied at the time 

of listing and is currently unoccupied. 

This area consists of a pond and its 

associated uplands on the WMA and 

has been given the name of Mayhaw 

Road Pond during ongoing recovery 

initiatives. Unit 5 is being actively 

managed by the Corps and MDWFP to 

benefit the recovery of the Mississippi 

gopher frog. Due to its low number of 

remaining populations and severely 

restricted range, the Mississippi gopher 

frog may be at risk of extirpation for 

stochastic events, such as disease or 

drought. Maintaining this area of 

suitable habitat, into which Mississippi 

gopher frogs could be translocated, is 

essential to decrease the potential risk of 

extinction of the species resulting from 

stochastic events and provide for the 

species’ eventual recovery. We 

determined that this area is essential to 

the conservation of the species because 

the pond (PCE 1) and the surrounding 

uplands (PCEs 2 and 3) are suitable 

habitat for attempting to establish a 

Mississippi gopher frog population in 

support of recovery of the species. 

Unit 6: Jackson County, Mississippi 

Unit 6 encompasses 39 ha (96 ac) on 

State land in Jackson County, 

Mississippi. This unit is located on 16th 

section land, approximately 4.4 km (2.8 

mi) east of State Hwy. 63, 4.5 km (2.8 

mi) west of the Escatawpa River, and 4.0 

km (2.5 mi) northeast of Helena, 

Mississippi. It is held in trust by the 

state of Mississippi as a local funding 

source for education in Jackson County. 

The local Jackson County School board 

has jurisdiction and control of the land. 

Unit 6 is not within the geographic 

range of the species occupied at the time 

of listing but is currently occupied. Unit 

6 contains a breeding pond, designated 

McCoy’s Pond, which was discovered 

subsequent to the listing of the 

Mississippi gopher frog. Due to its low 

number of remaining populations and 

severely restricted range, the 

Mississippi gopher frog may be at risk 

of extirpation for stochastic events, such 

as disease or drought. Maintaining this 

area of currently occupied habitat is 

essential to decrease the potential risk of 

extinction of the species resulting from 

stochastic events and provide for the 

species’ eventual recovery. We 

determined that this area is essential to 

the conservation of the species because 

it represents habitat naturally occupied 

by the Mississippi gopher frog (PCEs 1, 


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2, and 3) and will support recovery of 

the species. 

Unit 7: Forrest County, Mississippi 

Unit 7 encompasses 39 ha (96 ac) on 

Federal land in Jackson County, 

Mississippi. This unit is located on the 

DeSoto National Forest approximately 

2.1 km (1.3 mi) east of U.S. Hwy. 49, 

approximately 1.9 km (1.2 mi) south of 

Black Creek, and approximately 3.2 km 

(2 mi) south of the community of 

Brooklyn, Mississippi. 

Unit 7 is not within the geographic 

range of the species occupied at the time 

of listing and is currently unoccupied. 

This area surrounds a pond on the 

DeSoto National Forest selected as a 

future Mississippi gopher frog 

translocation site during ongoing 

recovery initiatives. The U.S. Forest 

Service is actively managing this area to 

benefit the recovery of the Mississippi 

gopher frog. Due to its low number of 

remaining populations and severely 

restricted range, the Mississippi gopher 

frog may be at risk of extirpation for 

stochastic events, such as disease or 

drought. Maintaining this area as 

suitable habitat into which Mississippi 

gopher frogs could be translocated is 

essential to decrease the potential risk of 

extinction of the species resulting from 

stochastic events and provide for the 

species’ eventual recovery. We 

determined that this area is essential to 

the conservation of the Mississippi 

gopher frog because it contains features 

essential to the conservation of the 

species, a potential breeding pond (PCE 

1) and the surrounding uplands (PCEs 2 

and 3), that provide habitat for future 

reintroduction of the species in support 

of Mississippi gopher frog recovery. 

Unit 8: Forrest County, Mississippi 

Unit 8 encompasses 39 ha (96 ac) on 

Federal land in Forrest County, 

Mississippi. This unit is located on the 

DeSoto National Forest approximately 

4.3 km (2.7 mi) east of U.S. Hwy. 49, 

approximately 4.6 km (2.9 mi) south of 

Black Creek, and approximately 6.1 km 

(3.8 mi) southeast of the community of 

Brooklyn, Mississippi. 

Unit 8 is not within the geographic 

range of the species occupied at the time 

of listing and is currently unoccupied. 

This area surrounds a pond on the 

DeSoto National Forest selected as a 

future Mississippi gopher frog 

translocation site during ongoing 

recovery initiatives. The U.S. Forest 

Service is actively managing this area to 

benefit the recovery of the Mississippi 

gopher frog. Due to its low number of 

remaining populations and severely 

restricted range, the Mississippi gopher 

frog may be at risk of extirpation for 

stochastic events, such as disease or 

drought. Maintaining this area as 

suitable habitat into which Mississippi 

gopher frogs could be translocated is 

essential to decrease the potential risk of 

extinction of the species resulting from 

stochastic events and provide for the 

species’ eventual recovery. We 

determined that this area is essential to 

the conservation of the Mississippi 

gopher frog because it contains features 

essential to the conservation of the 

species, a potential breeding pond (PCE 

1) and the surrounding uplands (PCEs 2 

and 3), that provide habitat for future 

translocation of the species in support 

of Mississippi gopher frog recovery. 

Unit 9: Perry County, Mississippi 

Unit 9 encompasses 56 ha (138 ac) on 

Federal land and 8 ha (20 ac) on private 

land in Perry County, Mississippi. This 

unit is located on the DeSoto National 

Forest at the intersection of Benndale 

Road and Mars Hill Road, 

approximately 2.6 km (1.6 mi) 

northwest of the intersection of the 

Perry County, Stone County, and George 

County lines and approximately 7.2 km 

(4.5 mi) north of State Hwy. 26. 

Unit 9 is not within the geographic 

range of the species occupied at the time 

of listing and is currently unoccupied. 

Unit 9 surrounds two ponds on the 

DeSoto National Forest selected as a 

future Mississippi gopher frog 

translocation sites during on-going 

recovery initiatives. The U.S. Forest 

Service is actively managing this area to 

benefit the recovery of the Mississippi 

gopher frog. Due to its low number of 

remaining populations and severely 

restricted range, the Mississippi gopher 

frog is at high risk of extirpation for 

stochastic events, such as disease or 

drought. Maintaining this area as 

suitable habitat into which Mississippi 

gopher frogs could be translocated is 

essential to decrease the risk of 

extinction of the species resulting from 

stochastic events and provide for the 

species’ eventual recovery. We 

determined that this area is essential to 

the conservation of the Mississippi 

gopher frog because it contains features 

essential to the conservation of the 

species, two potential breeding ponds 

(PCE 1) and the surrounding uplands 

(PCEs 2 and 3), that provide habitat for 

future translocation of the species in 

support of Mississippi gopher frog 

recovery. 

Unit 10: Perry County, Mississippi 

Unit 10 encompasses 39 ha (96 ac) on 

Federal land in Perry County, 

Mississippi. This unit is located on the 

DeSoto National Forest approximately 

0.5 km (0.3 mi) northeast of the 

intersection of the Perry County, Stone 

County, and George County lines, 

approximately 0.23 km (0.14 mi) north 

of Benndale Road, and approximately 

6.7 km (4.2 mi) north of State Hwy. 26. 

Unit 10 is not within the geographic 

range of the species occupied at the time 

of listing and is currently unoccupied. 

Unit 10 surrounds a pond on the DeSoto 

National Forest selected as a future 

Mississippi gopher frog translocation 

site during ongoing recovery initiatives. 

The U.S. Forest Service is actively 

managing this area to benefit the 

recovery of the Mississippi gopher frog. 

Due to its low number of remaining 

populations and severely restricted 

range, the Mississippi gopher frog may 

be at risk of extirpation for stochastic 

events, such as disease or drought. 

Maintaining this area as suitable habitat 

into which Mississippi gopher frogs 

could be translocated is essential to 

decrease the potential risk of extinction 

of the species resulting from stochastic 

events and provide for the species’ 

eventual recovery. We determined that 

this area is essential to the conservation 

of the Mississippi gopher frog because it 

contains features essential to the 

conservation of the species, a potential 

breeding pond (PCE 1) and the 

surrounding uplands (PCEs 2 and 3), 

that provide habitat for future 

translocation of the species in support 

of Mississippi gopher frog recovery. 

Unit 11: Perry County, Mississippi 

Unit 11 encompasses 39 ha (96 ac) on 

Federal land in Perry County, 

Mississippi. This unit is located on the 

DeSoto National Forest approximately 

1.6 km (1.0 mi) east of Mars Hill Road, 

approximately 4.2 km (2.6 mi) north of 

the intersection of the Perry County, 

Stone County, and George County lines, 

and approximately 10.5 km (6.6 mi) 

north of State Hwy. 26. 

Unit 11 is not within the geographic 

range of the species occupied at the time 

of listing and is currently unoccupied. 

Unit 11 surrounds a pond on the DeSoto 

National Forest selected as a future 

Mississippi gopher frog translocation 

site during on-going recovery initiatives. 

The U.S. Forest Service is actively 

managing this area to benefit the 

recovery of the Mississippi gopher frog. 

Due to its low number of remaining 

populations and severely restricted 

range, the Mississippi gopher frog may 

be at risk of extirpation for stochastic 

events such as disease or drought. 

Maintaining this area as suitable habitat 

into which Mississippi gopher frogs 

could be translocated is essential to 

decrease the potential risk of extinction 

of the species resulting from stochastic 

events and provide for the species’ 


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eventual recovery. We determined that 

this area is essential to the conservation 

of the Mississippi gopher frog because it 

contains features essential to the 

conservation of the species, a potential 

breeding pond (PCE 1) and the 

surrounding uplands (PCEs 2 and 3), 

that provide habitat for future 

translocation of the species in support 

of Mississippi gopher frog recovery. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. Decisions by the Fifth and 

Ninth Circuits Courts of Appeals have 

invalidated our definition of 

‘‘destruction or adverse modification’’ 

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F.3d 1059 (9th Cir. 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service, 245 F.3d 434, 442 (5th 

Cir. 2001)), and we do not rely on this 

regulatory definition when analyzing 

whether an action is likely to destroy or 

adversely modify critical habitat. Under 

the statutory provisions of the Act, we 

determine destruction or adverse 

modification on the basis of whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional (or 

retain the current ability for the PCEs to 

be functionally established) to serve its 

intended conservation role for the 

species. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with the 

Service on any action that is likely to 

jeopardize the continued existence of a 

species proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. Conference 

reports provide conservation 

recommendations to assist the agency in 

eliminating conflicts that may be caused 

by the proposed action. We may issue 

a formal conference report if requested 

by a Federal agency. Formal conference 

reports on proposed critical habitat 

contain an opinion that is prepared 

according to 50 CFR 402.14, as if critical 

habitat were designated. We may adopt 

the formal conference report as the 

biological opinion when the critical 

habitat is designated, if no substantial 

new information or changes in the 

action alter the content of the opinion 

(see 50 CFR 402.10(d)). The 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If we list a species or designate 

critical habitat, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of the species or 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 (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

• A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed 

species or critical habitat; or 

• A biological opinion for Federal 

actions that may affect, and are 

likely to adversely affect, listed 

species or critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

•Can be implemented in a manner 

consistent with the intended 

purpose of the action, 

•Can be implemented consistent with 

the scope of the Federal agency’s 

legal authority and jurisdiction, 

• Are economically and technologically 

feasible, and 

•Would, in the Director’s opinion, avoid 

jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Federal activities that may affect the 

Mississippi gopher frog or its designated 

critical habitat will require section 7 

consultation under the Act. Activities 

on State, Tribal, local, or private lands 

requiring a Federal permit (such as a 

permit from the U.S. Army Corps of 

Engineers under section 404 of the 

Clean Water Act (33 U.S.C. 1251 et seq.) 

or a permit under section 10 of the Act 

or involving some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency) are 

subject to the section 7 consultation 

process. Federal actions not affecting 

listed species or critical habitat, and 

actions on State, Tribal, local, or private 

lands that are not Federally funded, 

authorized, or permitted, do not require 

section 7 consultations. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species, or would retain its current 

ability for the essential features to be 

functionally established. Activities that 

may destroy or adversely modify critical 

habitat are those that alter the essential 

features to an extent that appreciably 

reduces the conservation value of 

critical habitat for the Mississippi 

gopher frog. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore should result in consultation 

for the Mississippi gopher frog include, 

but are not limited to: 

• Actions that would alter the hydrology 

or water quality of Mississippi 

gopher frog wetland habitats. Such 

activities could include, but are not 

limited to, discharge of fill material; 

release of chemicals and/or 

biological pollutants; clear-cutting, 

draining, ditching, grading, or 

bedding; diversion or alteration of 

surface or ground water flow into or 

out of a wetland (i.e., due to roads, 


srobinson on DSKHWCL6B1PROD with PROPOSALS
31400 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Proposed Rules 

fire breaks, impoundments, 

discharge pipes, etc.); discharge or 

dumping of toxic chemicals, silt, or 

other pollutants (i.e., sewage, oil, 

pesticides, and gasoline); and use of 

vehicles within wetlands. These 

activities could destroy Mississippi 

gopher frog breeding sites, reduce 

the hydrological regime necessary 

for successful larval 

metamorphosis, and/or eliminate or 

reduce the habitat necessary for the 

growth and reproduction, and affect 

the prey base, of the Mississippi 

gopher frog. 

• Forestry management actions in pine 

habitat that would significantly 

alter the suitability of Mississippi 

gopher frog terrestrial habitat. Such 

activities could include, but are not 

limited to, conversion of timber 

land to another use; timber 

management including clearcutting, site preparation involving 

ground disturbance, prescribed 

burning, and unlawful pesticide 

application. These activities could 

destroy or alter the uplands 

necessary for the growth and 

development of juvenile and adult 

Mississippi gopher frogs. 

• Actions that would significantly 

fragment and isolate Mississippi 

gopher frog wetland and upland 

habitats from each other. Such 

activities could include, but are not 

limited to, constructing new 

structures or new roads and 

converting forested habitat to other 

uses. These activities could limit or 

prevent the dispersal of Mississippi 

gopher frogs from breeding sites to 

upland habitat or vice versa due to 

obstructions to movement caused 

by structures, certain types of curbs, 

increased traffic density, or 

inhospitable habitat. 

Exemptions 

Application of Section 4(a)(3) of the Act 

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resources 

management plan (INRMP) by 

November 17, 2001. An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found on the base. Each INRMP 

includes: 

• An assessment of the ecological needs 

on the installation, including the 

need to provide for the conservation 

of listed species; 

• A statement of goals and priorities; 

• A detailed description of management 

actions to be implemented to 

provide for these ecological needs; 

and 

• A monitoring and adaptive 

management plan. 

Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108- 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

There are no Department of Defense 

lands with a completed INRMP within 

the proposed critical habitat 

designation. Therefore, we are not 

proposing exemption of any lands 

owned or managed by the Department of 

Defense from this designation of critical 

habitat for the Mississippi gopher frog. 

Exclusions 

Application of Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary must designate or make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species concerned. In making that 

determination, the legislative history is 

clear that the Secretary has broad 

discretion regarding which factor(s) to 

use and how much weight to give to any 

factor. 

Under section 4(b)(2) of the Act, we 

may exclude an area from designated 

critical habitat based on economic 

impacts, impacts on national security, 

or any other relevant impacts. In 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If, based on this 

analysis, we determine that the benefits 

of exclusion outweigh the benefits of 

inclusion, we can exclude the area only 

if such exclusion would not result in the 

extinction of the species. 

Economic Impacts 

Under section 4(b)(2) of the Act, we 

consider the economic impacts of 

specifying any particular area as critical 

habitat. In order to consider economic 

impacts, we are preparing an analysis of 

the probable economic impacts of the 

proposed critical habitat designation 

and related factors. 

We will announce the availability of 

the draft economic analysis as soon as 

it is completed, at which time we will 

seek public review and comment. At 

that time, copies of the draft economic 

analysis will be available for 

downloading from the Internet at the 

Federal eRulemaking Portal: http:// 

www.regulations.gov, or by contacting 

the Mississippi Fish and Wildlife Office 

directly (see FOR FURTHER INFORMATION

CONTACT section). During the 

development of a final designation, we 

will consider economic impacts, public 

comments, and other new information, 

and as an outcome of our analysis of 

this information, we may exclude areas 

from the final critical habitat 

designation under section 4(b)(2) of the 

Act and our implementing regulations at 

50 CFR 424.19. 

National Security Impacts 

Under section 4(b)(2) of the Act, we 

consider whether there are lands owned 

or managed by the Department of 

Defense where a national security 

impact might exist. In preparing this 

proposal, we have determined that the 

lands within the proposed designation 

of critical habitat for the Mississippi 

gopher frog are not owned or managed 

by the DOD, and therefore, we 

anticipate no impact to national 

security. There are no areas proposed 

for exclusion based on impacts to 

national security. 

Other Relevant Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 


srobinson on DSKHWCL6B1PROD with PROPOSALS
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addition to economic impacts and 

impacts on national security. We 

consider a number of factors, including 

whether the landowners have developed 

any conservation plans or other 

management plans for the area, or 

whether there are conservation 

partnerships that would be encouraged 

by designation of, or exclusion of, lands 

from critical habitat. In addition, we 

look at any Tribal issues, and consider 

the government-to-government 

relationship of the United States with 

Tribal entities. We also consider any 

social impacts that might occur because 

of the designation. 

In preparing this proposed rule, we 

have determined that there are currently 

no conservation plans or other 

management plans for the species, and 

the proposed designation does not 

include any Tribal lands or trust 

resources. We anticipate no impact to 

Tribal lands, partnerships, or HCPs or 

other management plans from this 

proposed critical habitat designation. 

There are no areas proposed for 

exclusion from this proposed 

designation based on other relevant 

impacts. 

Notwithstanding these decisions, as 

stated under the Public Comments 

section above, we request specific 

comments on whether any specific areas 

proposed for designation for the 

Mississippi gopher frog should be 

excluded under section 4(b)(2) of the 

Act from the final designation. 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of such review is to ensure that 

our proposed actions are based on 

scientifically sound data, assumptions, 

and analyses. We will invite these peer 

reviewers to comment, during the 

public comment period, on the specific 

assumptions and conclusions regarding 

the proposed designation of critical 

habitat. 

We will consider all comments and 

information received during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests for public hearings 

must be made in writing within 45 days 

of the publication of this proposal (see 

DATES and ADDRESSES sections). We 

will schedule public hearings on this 

proposal, if any are requested, and 

announce the dates, times, and places of 

those hearings in the Federal Register 

and local newspapers at least 15 days 

before the first hearing. 

Required Determinations 

Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant and has not reviewed 

this proposed rule under Executive 

Order 12866 (E.O. 12866). OMB bases 

its determination upon the following 

four criteria: 

(a) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(b) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(c) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(d) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency must 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended RFA to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, we lack the specific 

information necessary to provide an 

adequate factual basis for determining 

the potential incremental regulatory 

effects of the designation of critical 

habitat for the Mississippi gopher frog to 

either develop the required RFA finding 

or provide the necessary certification 

statement that the designation will not 

have a significant impact on a 

substantial number of small business 

entities. On the basis of the 

development of our proposal, we have 

identified certain sectors and activities 

that may potentially be affected by a 

designation of critical habitat for the 

Mississippi gopher frog. These sectors 

include timber operations, industrial 

development, and urbanization, along 

with the accompanying infrastructure 

associated with such projects such as 

road, storm water drainage, and bridge 

and culvert construction and 

maintenance. We recognize that not all 

of these sectors qualify as small 

business entities. However, while 

recognizing that these sectors and 

activities may be affected by this 

designation, we are collecting 

information and initiating our analysis 

to determine (1) which of these sectors 

or activities are or involve small 

business entities and (2) what extent the 

effects are related to the Mississippi 

gopher frog being listed as an 

endangered species under Act (baseline 

effects) or whether the effects are 

attributable to the designation of critical 

habitat (incremental). We believe that 

the potential incremental effects 

resulting from a designation will be 

small. As a consequence, following an 

initial evaluation of the information 

available to us, we do not believe that 

there will be a significant impact on a 

substantial number of small business 

entities resulting from this designation 

of critical habitat for the Mississippi 

gopher frog. However, we will be 

conducting a thorough analysis to 

determine if this may in fact be the case. 

As such, we are requesting any specific 

economic information related to small 

business entities that may be affected by 

this designation and how the 

designation may impact their business. 

Therefore, we defer our RFA finding on 

this proposed designation until 

completion of the draft economic 

analysis prepared under section 4(b)(2) 

of the Act and E.O. 12866. 

As discussed above, this draft 

economic analysis will provide the 

required factual basis for the RFA 

finding. Upon completion of the draft 

economic analysis, we will announce 

availability of the draft economic 

analysis of the proposed designation in 

the Federal Register and reopen the 

public comment period for the proposed 

designation. We will include with this 

announcement, as appropriate, an initial 

regulatory flexibility analysis or a 

certification that the rule will not have 

a significant economic impact on a 

substantial number of small entities 

accompanied by the factual basis for 

that determination. We have concluded 


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that deferring the RFA finding until 

completion of the draft economic 

analysis is necessary to meet the 

purposes and requirements of the RFA. 

Deferring the RFA finding in this 

manner will ensure that we make a 

sufficiently informed determination 

based on adequate economic 

information and provide the necessary 

opportunity for public comment. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(a) This rule would not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)-(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments,’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid for Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

jeopardize the continued existence of 

the species, or destroy or adversely 

modify critical habitat under section 7. 

While non-Federal entities that receive 

Federal funding, assistance, or permits, 

or that otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(b) We do not believe that this rule 

would significantly or uniquely affect 

small governments because the 

Mississippi gopher frog occurs primarily 

on Federal and privately owned lands. 

None of these government entities fit the 

definition of ‘‘small governmental 

jurisdiction.’’ Therefore, a Small 

Government Agency Plan is not 

required. However, we will further 

evaluate this issue as we conduct our 

economic analysis, and review and 

revise this assessment as warranted. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for the 

Mississippi gopher frog in a takings 

implications assessment. The takings 

implications assessment concludes that 

this designation of critical habitat for 

the Mississippi gopher frog does not 

pose significant takings implications for 

lands within or affected by the proposed 

designation. 

Federalism—Executive Order 13132 

In accordance with E. O. 13132 

(Federalism), this rule does not have 

significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of this 

proposed critical habitat designation 

with appropriate State resource agencies 

in Mississippi. The critical habitat 

designation may have some benefit to 

this government in that the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the essential 

features themselves are specifically 

identified. While making this definition 

and identification does not alter where 

and what federally sponsored activities 

may occur, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Where state and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) would be required. 

While non-Federal entities that receive 

Federal funding, assistance, or permits, 

or that otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the rule 

does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We have proposed 

designating critical habitat in 

accordance with the provisions of the 

Act. This proposed rule uses standard 

property descriptions and identifies the 

physical and biological features 

essential to the conservation of the 

species within the designated areas to 

assist the public in understanding the 

habitat needs of the Mississippi gopher 

frog. 

Paperwork Reduction Act of 1995 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

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

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. 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. 

National Environmental Policy Act 

(NEPA) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by NEPA (42 U.S.C. 4321 et 

seq.) in connection with designating 

critical habitat under the Act. We 


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published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). This position was upheld by the 

U.S. Court of Appeals for the Ninth 

Circuit (Douglas County v. Babbitt, 48 

F.3d 1495 (9th Cir. 1995), cert. denied 

516 U.S. 1042 (1996)). 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

Government-to-Government 

Relationship with Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), E. O. 

13175, and the Department of Interior’s 

manual at 512 DM 2, we readily 

acknowledge our responsibility to 

communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 ‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act,’’ we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

We have determined that there are no 

Tribal lands occupied at the time of 

listing that contain the features essential 

for the conservation, and no Tribal 

lands that are essential for the 

conservation of the Mississippi gopher 

frog. Therefore, we have not proposed 

designation of critical habitat for the 

Mississippi gopher frog on Tribal lands. 

Energy Supply, Distribution, or Use 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211; Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) on regulations that 

significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. Based on an analysis of 

areas included in this proposal, we 

determined that this proposed rule to 

designate critical habitat for the 

Mississippi gopher frog is not expected 

to significantly affect energy supplies, 

distribution, or use. Therefore, this 

action is not a significant energy action, 

and no Statement of Energy Effects is 

required. However, we will further 

evaluate this issue as we conduct our 

economic analysis, and review and 

revise this assessment as warranted. 

References Cited 

A complete list of all references cited 

in this rulemaking is available on the 

Internet at http:// 

www.regulations.govand upon request 

from the Field Supervisor, Mississippi 

Fish and Wildlife Office (see FOR

FURTHER INFORMATION CONTACT). 

Author(s) 

The primary authors of this package 

are staff members of the Mississippi 

Fish and Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, 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. In § 17.11(h), revise the entry for 

‘‘Frog, Mississippi gopher’’ under 

AMPHIBIANS in the List of Endangered 

and Threatened Wildlife to read as 

follows: 

§ 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, 

Mississippi 

gopher 

Rana sevosa U.S.A. 

(AL,LA,MS) 

Whereever 

found west of 

Mobile and 

Tombigbee 

Rivers in AL, 

MS, and LA 

E 718 17.95(d) NA 

* * * * * * * 


srobinson on DSKHWCL6B1PROD with PROPOSALS
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3. In § 17.95(d), add an entry for 

‘‘Mississippi gopher frog’’ (Rana sevosa) 

in the same alphabetical order as the 

species appears in § 17.11(h), to read as 

follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(d) Amphibians. 

* * * * * 

Mississippi gopher frog (Rana sevosa) 

(1) Critical habitat units are depicted 

for Forrest, Harrison, Jackson, and Perry 

Counties in Mississippi, on the maps 

below. 

(2) The primary constituent elements 

of critical habitat for the Mississippi 

gopher frog are: 

(i) Breeding ponds, geographically 

isolated from other waterbodies and 

embedded in forests historically 

dominated by longleaf pine 

communities, that are small (generally 

<0.4 to 4.0 hectares (ha) (<1 to 10 acres 

(ac)), ephemeral, and acidic. Specific 

conditions necessary in breeding ponds 

to allow for successful reproduction of 

Mississippi gopher frogs are: 

(A) An open canopy with emergent 

herbaceous vegetation for egg 

attachment; 

(B) An absence of large, predatory fish 

that prey on frog larvae; 

(C) Water quality such that frogs, their 

eggs, or larvae are not exposed to 

pesticides or chemicals and sediment 

associated with road runoff; and 

(D) Surface water that lasts for a 

minimum of 195 days during the 

breeding season to allow a sufficient 

period for larvae to hatch, mature, and 

metamorphose. 

(ii) Upland forested nonbreeding 

habitat historically dominated by 

longleaf pine, adjacent and accessible to 

and from breeding ponds, that is 

maintained by fires frequent enough to 

support an open canopy and abundant 

herbaceous ground cover and gopher 

tortoise burrows, small mammal 

burrows, stump holes, or other 

underground habitat that the 

Mississippi gopher frog depends upon 

for food, shelter, and protection from 

the elements and predation. 

(iii) Accessible upland connectivity 

habitat between breeding and 

nonbreeding habitats to allow for 

Mississippi gopher frog movements 

between and among such sites and that 

is characterized by an open canopy and 

abundant native herbaceous species and 

subsurface structure which provides 

shelter for Mississippi gopher frogs 

during seasonal movements, such as 

that created by deep litter cover, clumps 

of grass, or burrows. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

bridges, aqueducts, airports, and roads) 

and the land on which they are located 

existing within the legal boundaries on 

the effective date of this rule. 

(4) Critical habitat unit maps. Maps 

were developed from USGS 7.5’ 

quadrangles, and critical habitat units 

were then mapped using Universal 

Transverse Mercator (UTM) coordinates. 

(5) Note: Index Map (Map 1) follows: 

BILLING CODE 4310–55–S 


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(6) Unit 1: Harrison County, 

Mississippi. 

(i) Unit 1 from USGS 1:24,000 scale 

quadrangle map, Success, Mississippi. 

[Reserved for textual description of Unit 

1.] 

(ii) Note: Map of Unit 1 is provided 

at paragraph (7)(ii) of this entry. 

(7) Unit 2: Harrison County, 

Mississippi. 

(i) Unit 2 from USGS 1:24,000 scale 

quadrangle map, White Plains, 

Mississippi. 

[Reserved for textual description of Unit 

2.] 

(ii) Note: Map of Units 1 and 2 

follows: 


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31406 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Proposed Rules 

(8) Unit 3: Jackson County, 

Mississippi. 

(i) Unit 3 from USGS 1:24,000 scale 

quadrangle map Gautier North, 

Mississippi. 

[Reserved for textual description of Unit 

3.] 

(ii) Note: Map depicting Unit 3 is 

provided at paragraph (10)(ii) of this 

entry. 

(9) Unit 4: Jackson County, 

Mississippi. 

(i) Unit 4 from USGS 1:24,000 scale 

quadrangle map Latimer, Mississippi. 

[Reserved for textual description of Unit 

4.] 

(ii) Note: Map depicting Unit 4 is 

provided at paragraph (10)(ii) of this 

entry. 

(10) Unit 5: Jackson County, 

Mississippi. 

(i) Unit 5 from USGS 1:24,000 scale 

quadrangle map Vancleave, Mississippi. 


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Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Proposed Rules 31407 

[Reserved for textual description of Unit 

5.] 

(ii) Note: Map of Units 3, 4, and 5 

follows: 

(11) Unit 6: Jackson County, 

Mississippi. 

(i) Unit 6 from USGS 1:24,000 scale 

quadrangle map Big Point, Mississippi. 

[Reserved for textual description of Unit 

6.] 

(ii) Note: Map of Unit 6 follows: 


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31408 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Proposed Rules 

(12) Unit 7: Forrest County, 

Mississippi. 

(i) Unit 7 from USGS 1:24,000 scale 

quadrangle map Brooklyn, Mississippi. 

[Reserved for textual description of Unit 

7.] 

(ii) Note: Map depicting Unit 7 is 

provided at paragraph (13)(ii) of this 

entry. 

(13) Unit 8: Jackson County, 

Mississippi. 

(i) Unit 8 from USGS 1:24,000 scale 

quandrangle map Brooklyn, Mississippi. 

[Reserved for textual description of Unit 

8.] 

(ii) Note: Map of Units 7 and 8 

follows: 


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Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Proposed Rules 31409 

(14) Unit 9: Perry County, Mississippi. 

(i) Map unit 9 from USGS 1:24,000 

scale quadrangle map Barbara, 

Mississippi. 

[Reserved for textual description of Unit 

9.] 

(ii) Note: Map depicting Unit 9 is 

provided at paragraph (16)(ii) of this 

entry. 

(15) Unit 10: Perry County, 

Mississippi. 

(i) Map unit 10 from USGS 1:24,000 

scale quadrangle map Barbara, 

Mississippi. 

[Reserved for textual description of Unit 

10.] 

(ii) Note: Map depicting Unit 10 is 

provided at paragraph (16)(ii) of this 

entry. 


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31410 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Proposed Rules 

(16) Unit 11: Perry County, 

Mississippi. 

(i) Map unit 11 from USGS 1:24,000 

scale quadrangle map Barbara, 

Mississippi. 

[Reserved for textual description of Unit 

11.] 

(ii) Note: Map of Units 9, 10, and 11 

follows: 


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Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Proposed Rules 31411 

* * * * * Dated: May 17, 2010 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–13359 Filed 6–2– 10; 8:45 am] 

BILLING CODE 4310–55–C 


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