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project that FTA already measures as Executive Order 12866 requires Issued in Washington, DC, this 1st day of part of cost effectiveness? Should FTA agencies to regulate in the ‘‘most cost- June, 2010. consider the extent to which existing effective manner,’’ to make a ‘‘reasoned Peter Rogoff, affordable housing and commercial determination that the benefits of the Administrator. space can be maintained in the corridor intended regulation justify its costs,’’ [FR Doc. 2010–13423 Filed 6–1–10; 11:15 am] after implementation of a transit project and to develop regulations that ‘‘impose BILLING CODE 4910–57–P there? the least burden on society.’’ Because 10. Should economic development be this ANPRM does not contain specific a part of the cost effectiveness measure? proposals, it is not possible at this time DEPARTMENT OF THE INTERIOR to perform a cost-benefit analysis. Public Outreach Sessions Fish and Wildlife Service The meetings listed below are the first Regulatory Flexibility Act two in a series of outreach sessions that 50 CFR Part 17 will provide a forum for FTA staff to Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.), FTA must [FWS- R4-ES-2010-0024]; make oral presentations on this ANPRM [MO 92210-0-0009-B4] and allow meeting attendees an consider whether a proposed rule would opportunity to pose questions to the have a significant economic impact on RIN 1018-AX25 speakers. Additionally, the sessions are a substantial number of small entities. intended to encourage interested parties ‘‘Small entities’’ include small Endangered and Threatened Wildlife and stakeholders to submit their businesses, not-for-profit organizations and Plants; Designation of Critical comments directly to the official docket that are independently owned and Habitat for Mississippi Gopher Frog per the instructions found in the operated and are not dominant in their AGENCY: Fish and Wildlife Service, ADDRESSES section of this notice. fields, and governmental jurisdictions Interior. with populations under 50,000. Because Further outreach sessions, once ACTION: Proposed rule. scheduled, will be announced in a this ANPRM does not contain specific subsequent Federal Register notice. proposals, it is not possible to perform SUMMARY: We, the U.S. Fish and The dates, times, and locations of the that analysis at this time. This ANPRM Wildlife Service, propose to designate first two public outreach sessions are: does, however, seek input from the critical habitat for the Mississippi (1) Monday, June 7, 4:30 pm to 6:30 pm, public, including small entities, on the gopher frog (Rana sevosa) [= Rana EST, 500 Fayetteville Street, Raleigh, implementation of the New Starts and capito sevosa] under the Endangered NC 27601 (Marriott City Center Hotel), Small Starts programs, including what, Species Act of 1973, as amended (Act). concurrent with the conference on if any, significant economic impacts A total of 792 hectares (1,957 acres) in ‘‘Environment and Energy: Better might result. 11 units are proposed for critical habitat Delivery of Better Transportation designation. The proposed critical Solutions,’’ sponsored by the Executive Order 13132: Federalism habitat is located within Forrest, Transportation Research Board; (2) Harrison, Jackson, and Perry Counties, Executive Order 13132 requires Tuesday, June 8, 2:30 pm to 4:30 pm, Mississippi. PST, Vancouver, British Columbia, agencies to assure meaningful and timely input by State and local officials DATES: We will consider comments from Canada, 655 Burrard Street, Vancouver, all interested parties until August 2, British Columbia, Canada V6C 2R7 in the development of regulatory policies that may have a substantial, 2010. We must receive requests for (Hyatt Regency Hotel), concurrent with public hearings, in writing, at the ‘‘ ’’ direct effect on the states, on the the 2010 Rail Conference sponsored address shown in the FOR FURTHER by the American Public Transportation relationship between the national government and the states, or on the INFORMATION CONTACT section by July 19, Association. All locations are ADA- 2010. accessible. Individuals attending a distribution of power and meeting who are hearing or visually responsibilities among the various ADDRESSES: You may submit comments levels of government. This ANPRM asks by one of the following methods: impaired and have special • requirements, or a condition that questions about FTA’s implementation Federal eRulemaking Portal: http:// requires special assistance or of the New Starts and Small Starts www.regulations.gov. Follow the accommodations, should call Elizabeth programs, and FTA specifically invites instructions for submitting comments on Docket No. FWS-R4-ES-2010-0024. Day, Office of Planning and State and local governments with an • U.S. mail or hand delivery: Public Environment, at (202) 366–5159. interest in this rulemaking to provide Comments Processing, Attn: FWS-R4- Regulatory Notices feedback on those questions. ES-2010-0024; Division of Policy and All comments received on this Regulation Identifier Number (RIN) Directives Management; U.S. Fish and ANPRM will be available for Wildlife Service; 4401 N. Fairfax Drive, The U.S. DOT assigns a regulation examination in the docket at http:// Suite 222; Arlington, VA 22203. identifier number (RIN) to each www.regulations.gov. We will not accept e-mail or faxes. We regulatory action listed in the Unified will post all comments on http:// Executive Order 12866 and DOT Agenda of Federal Regulations. The www.regulations.gov. This generally Regulatory Policies and Procedures Regulatory Information Service Center means that we will post any personal This rulemaking is a significant publishes the Unified Agenda in April information you provide us (see Public regulatory action pursuant to section and October of each year. The RIN Comments section below for more 3(f) of Executive Order 12866 and the number contained in the heading of this information). Regulatory Policies and Procedures of document may be used to cross- FOR FURTHER INFORMATION CONTACT: the Department of Transportation (44 FR reference this action with the Unified Stephen Ricks, Field Supervisor, U.S. 11032). This ANPRM was reviewed by Agenda. Fish and Wildlife Service, Mississippi the Office of Management and Budget. Fish and Wildlife Office, 6578 Dogwood

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View Parkway, Jackson, MS 39213; benefits of potentially excluding any indicated that the listed entity is telephone: 601-321-1127; facsimile: 601- specific area outweigh the benefits of different from other gopher frogs and 965-4340. If you use a including that area under section 4(b)(2) warrants acceptance as its own species, telecommunications device for the deaf of the Act. Rana sevosa (Young and Crother 2001, (TDD), call the Federal Information (7) Information on any quantifiable pp. 382-388). The herpetological Relay Service (FIRS) at 800-877-8339. economic costs or benefits of the scientific community has accepted this SUPPLEMENTARY INFORMATION: proposed designation of critical habitat. taxonomic change, and, as a result, we (8) Information on the projected and announce our intention to revise our Public Comments reasonably likely impacts of climate List of Endangered and Threatened We intend that any final action change on the Mississippi gopher frog, Wildlife to reflect this change in resulting from this proposed rule will be and any special management needs or nomenclature. The common name for based on the best scientific and protections that may be needed in the Rana sevosa used in the most recent commercial data available and be as critical habitat areas we are proposing. taxonomic treatment for reptiles and accurate and as effective as possible. (9) Whether we could improve or amphibians is dusky gopher frog Therefore, we request comments or modify our approach to designating (Crother et al. 2003, p. 197). However, information from governmental critical habitat in any way to provide for we will continue to use the common agencies, the scientific community, greater public participation and name, Mississippi gopher frog, to industry, or any other interested party understanding, or to better describe the listed entity in order to concerning this proposed rule. We accommodate public concerns and avoid confusion with some populations particularly seek comments concerning: comments. of the eastern Rana capito, for which the (1) The reasons why we should or (10) The appropriateness of the common name of dusky gopher frog is should not designate habitat as ‘‘critical taxonomic name change of the still popularly used. habitat’’ under section 4 of the Act (16 Mississippi gopher frog from Rana The subspecies, dusky gopher frog U.S.C. 1531 et seq.), including whether capito sevosa to Rana sevosa. (Rana capito sevosa), originally there are threats to the species from You may submit your comments and described those gopher frogs occurring human activity, the degree of which can materials concerning this proposed rule in western Florida, Alabama, be expected to increase due to the by one of the methods listed in the Mississippi, and Louisiana. The listing designation, and whether the benefit of ADDRESSES section. We will not accept at 50 CFR 17.11 is of a distinct designation would be outweighed by comments sent by e-mail or fax or to an population segment (DPS) representing threats to the species caused by the address not listed in the ADDRESSES those dusky gopher frogs occurring west designation, such that the designation of section. of the Mobile and Tombigbee Rivers in critical habitat is not prudent. We will post your entire comment— Alabama, Mississippi, and Louisiana. (2) Comments or information that may including your personal identifying As discussed above, taxonomic research assist us in identifying or clarifying the information—on http:// has elevated the dusky gopher frog to physical and biological features www.regulations.gov. If your written full species status. Therefore, while we essential to the conservation of the comments provide personal identifying are proposing a change to the listing in Mississippi gopher frog. information, you may request at the top 50 CFR 17.11(h) to update the species (3) Specific information on: of your document that we withhold this name to Rana sevosa, the listed entity • The amount and distribution of information from public review. actually would not change; the same Mississippi gopher frog habitat, However, we cannot guarantee that we frogs would retain protection under the • What areas occupied at the time of will be able to do so. Act as an endangered species. We also listing and that contain physical Comments and materials we receive, propose to remove the State of Florida and biological features essential to as well as supporting documentation we from the ‘‘Historical range’’ column of the conservation of the species, used in preparing this proposed rule, the table entry in 50 CFR 17.11(h) since • What special management will be available for public inspection this delineated the entire range, considerations or protections may on http://www.regulations.gov, or by including unlisted portions, of the these features require, and appointment, during normal business subspecies, Rana capito sevosa. The • What areas not occupied at the time of hours, at the U.S. Fish and Wildlife historic range column of the table entry listing are essential for the Service, Mississippi Fish and Wildlife in 50 CFR 17.11 (h) has been changed conservation of the species and Office (see FOR FURTHER INFORMATION to reflect the historic range of the listed why. CONTACT). entity, Rana sevosa. As a result of the (4) Land-use designations and current name change, the species occupying the or planned activities in the subject areas Background eastern portion of the range that and their possible impacts on proposed It is our intent to discuss only those includes the State of Florida is the critical habitat. topics directly relevant to the unlisted Rana capito. (5) Any probable economic, national designation of critical habitat in this Geographic Range, Habitat, and Threats security, or other relevant impacts of proposed rule. For more information on designating any area that may be the Mississippi gopher frog, refer to the The Mississippi gopher frog has a included in the final designation. We final rule listing the species as very limited historical range in are particularly interested in any endangered, which was published in the Alabama, Mississippi, and Louisiana. At impacts on small entities (e.g., small Federal Register on December 4, 2001 the time of listing in 2001, this species businesses or small governments) or (66 FR 62993). See also the discussion occurred at only one site, Glen’s Pond, families, and the benefits of including or of habitat in the Physical and Biological in the DeSoto National Forest in excluding areas that exhibit these Features section below. Harrison County, Mississippi (66 FR impacts. 62993). Mississippi gopher frog habitat (6) Whether any specific areas we are Taxonomy and Nomenclature includes both upland sandy habitats— proposing as critical habitat should be Subsequent to the listing of the historically forest dominated by longleaf considered for exclusion under section Mississippi gopher frog, taxonomic pine (Pinus palustris) —and isolated 4(b)(2) of the Act, and whether the research was completed which temporary wetland breeding sites

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embedded within the forested gopher frog were found in Jackson designation of critical habitat, by May landscape. Adult and subadult frogs County, Mississippi (Sisson 2004, p. 8). 30, 2010, and a final designation by May spend the majority of their lives Due to the paucity of available suitable 30, 2011. underground in active and abandoned habitat for the Mississippi gopher frog, Critical Habitat gopher tortoise (Gopherus polyphemus) we have worked with our State, Federal, burrows, abandoned mammal burrows, and nongovernmental partners to Background and holes in and under old stumps identify and restore upland and wetland Critical habitat is defined in section 3 (Richter et al. 2001, p. 318). Frequent habitats to create appropriate of the Act as: fires are necessary to maintain the open translocation sites for the species. We (1) The specific areas within the canopy and ground cover vegetation of identified 15 ponds and associated geographical area occupied by the their aquatic and terrestrial habitat. The forested uplands which we considered species, at the time it is listed in Mississippi gopher frog was listed as an to have restoration potential. These sites accordance with the Act, on which are endangered species due to its low occur on the DeSoto National Forest found those physical or biological population size and because of ongoing (Harrison, Forrest, and Perry Counties), features threats to the species and its habitat (66 the Ward Bayou Wildlife Management (a) Essential to the conservation of the FR 62993). Primary threats to the Area (Jackson County), and two species and species include urbanization and privately owned sites (Jackson County). (b) Which may require special associated development and road We have used Glen’s Pond and its management considerations or building; fire suppression; two surrounding uplands on the DeSoto protection; and potentially fatal amphibian diseases National Forest, Harrison County, (2) Specific areas outside the known to be present in the population; Mississippi, as a guide in our geographical area occupied by the and the demographic effects of small management efforts. Ongoing habitat species at the time it is listed, upon a population size (66 FR 62993; Sisson management is being conducted at these determination that such areas are 2003, pp. 5, 9; Overstreet and Lotz 2004, areas to restore them as potential essential for the conservation of the pp. 1-13). relocation sites for the Mississippi species. gopher frog. Habitat management at one Current Status Conservation, as defined under of the privately owned sites (Unit 3) section 3 of the Act, means to use and Since the time of listing on December reached the point where we believed a the use of all methods and procedures 4, 2001, we have used information from translocation effort could be initiated. that are necessary to bring an surveys and reports prepared by the Tadpoles and metamorphic frogs have endangered or threatened species to the Alabama Department of Conservation been released in 2004, 2005, 2007, and point at which the measures provided and Natural Resources; Louisiana 2008, at a pond restored for use as a under the Act are no longer necessary. Department of Wildlife and Fisheries/ breeding site (Sisson et al. 2008, p. 16). Such methods and procedures include, Natural Heritage Program; Mississippi In December 2007, Mississippi gopher Museum of Natural Science/Mississippi frogs were heard calling at the site, and but are not limited to, all activities Department of Wildlife, Fisheries, and one egg mass was discovered (Baxley associated with scientific resources Parks; Mississippi gopher frog and Qualls 2007, pp. 14-15). As a result, management such as research, census, researchers; and Service data and we consider this site to be currently law enforcement, habitat acquisition records to search for additional occupied by the species, bringing the and maintenance, propagation, live locations occupied, or with the potential total number of currently occupied sites trapping, and transplantation, and, in to be occupied, by the Mississippi to four. the extraordinary case where population gopher frog. After reviewing the pressures within a given ecosystem available information from the areas in Previous Federal Action cannot be otherwise relieved, may the three States that were historically The Mississippi gopher frog (Rana include regulated taking. occupied by the Mississippi gopher frog, capito sevosa) distinct population Critical habitat receives protection we determined that most of the segment of the gopher frog (Rana capito) under section 7(a)(2)of the Act through potential restorable habitat for the (see Taxonomy and Nomenclature the prohibition against Federal agencies species occurred in Mississippi. discussion above) was listed as an carrying out, funding, or authorizing the Wetlands throughout the coastal endangered species under the Act on destruction or adverse modification of counties of Mississippi have been December 4, 2001 (66 FR 62993). The critical habitat. Section 7(a)(2) requires identified by using U.S. Geological Service found that designation of consultation on Federal actions that Survey topographic maps, National critical habitat was prudent at the time may affect critical habitat. The Wetland Inventory maps, Natural of listing. However, the development of designation of critical habitat does not Resource Conservation Service county a designation was deferred due to affect land ownership or establish a soil survey maps, and satellite imagery. budgetary and workload constraints. refuge, wilderness, reserve, preserve, or Although historically the Mississippi On November 27, 2007, the Center for other conservation area. Such gopher frog was commonly found in the Biological Diversity and Friends of designation does not allow the coastal counties of Mississippi (Allen Mississippi Public Lands filed a lawsuit government or public to access private 1932, p. 9; Neill 1957, p. 49), very few against the Service and the Secretary of lands. Such designation does not of the remaining ponds provide the Interior for our failure to timely require implementation of restoration, potential appropriate breeding habitat designate critical habitat for the recovery, or enhancement measures by (Sisson 2003, p. 6). Field surveys Mississippi gopher frog (Friends of non-Federal landowners. Where a conducted in Alabama and Louisiana Mississippi Public Lands and Center for landowner seeks or requests Federal have been unsuccessful in documenting Biological Diversity v. Kempthorne (07- agency funding or authorization for an the continued existence of Mississippi CV-02073)). In a court-approved action that may affect a listed species or gopher frogs in these States (Pechmann settlement, the Service agreed to submit critical habitat, the consultation et al. 2006, pp. 1-23; Bailey 2009, pp. 1- to the Federal Register a new prudency requirements of section 7(a)(2) would 2). However, two new naturally determination, and if the designation apply, but even in the event of a occurring populations of the Mississippi was found to be prudent, a proposed destruction or adverse modification

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finding, the obligation of the Federal materials and expert opinion or substance of future recovery plans, action agency and the landowner is not personal knowledge. habitat conservation plans (HCPs), to restore or recover the species, but to Habitat is often dynamic, and species section 7 consultations, or other species implement reasonable and prudent may move from one area to another over conservation planning efforts if new alternatives to avoid destruction or time. In particular, we recognize that information available at the time of adverse modification of critical habitat. climate change may cause changes in these planning efforts calls for a To be considered for inclusion in a the suitability of occupied habitat. different outcome. critical habitat designation, the habitat Climate change may lead to increased within the geographical area occupied frequency and duration of severe storms Prudency Determination by the species at the time it was listed and droughts (McLauglin et al. 2002, p. Section 4(a)(3) of the Act, as must contain the physical and biological 6074; Golladay et al. 2004, p. 504; amended, and implementing regulations features essential to the conservation of Seager et al. 2009, p. 5043). During a (50 CFR 424.12) require that, to the the species. Areas supporting the period of drought from 2004 to 2007, maximum extent prudent and essential physical or biological features rainfall during the Mississippi gopher determinable, the Secretary designate are identified, to the extent known using frog breeding season was insufficient to critical habitat at the time the species is the best scientific data available, as the support recruitment of metamorphic determined to be endangered or habitat areas that provide essential life frogs to the population (Sisson 2004, p. threatened. Our regulations at 50 CFR cycle needs of the species. Habitat 7; Sisson 2005, pp. 11-12; Baxley and 424.12(a)(1) state that the designation of within the geographical area occupied Qualls 2006, pp. 7-9; Baxley and Qualls critical habitat is not prudent when one by the species at the time of listing that 2007, p. 13). or both of the following situations exist: contains features essential to the The information currently available (1) The species is threatened by taking conservation of the species meets the on the effects of global climate change or other activity and the identification definition of critical habitat only if these and increasing temperatures does not of critical habitat can be expected to features may require special make sufficiently precise estimates of increase the degree of threat to the management consideration or the location and magnitude of the species; or (2) the designation of critical protection. Under the Act and effects. Nor are we currently aware of habitat would not be beneficial to the regulations at 50 CFR 424.12, we can any climate change information specific species. to the habitat of the Mississippi gopher designate critical habitat in areas There is no documentation that the frog that would indicate what areas may outside the geographical area occupied Mississippi gopher frog is threatened by by the species at the time it is listed become important to the species in the taking or other human activity. In the only when we determine that the best future. Therefore, we are unable to absence of finding that the designation available scientific data demonstrate determine what additional areas, if any, of critical habitat would increase threats that those areas are essential for the may be appropriate to include in the to the species, if there are any benefits conservation of the species. proposed critical habitat for this species; Section 4 of the Act requires that we however, we specifically request to a critical habitat designation, then a designate critical habitat on the basis of information from the public on the prudent finding is warranted. The the best scientific data available. currently predicted effects of climate potential benefits include: (1) Triggering Further, our Policy on Information change on the Mississippi gopher frog consultation, under section 7 of the Act, Standards Under the Endangered and its habitat. Additionally, we in new areas for action in which there Species Act (published in the Federal recognize that critical habitat designated may be a Federal nexus where Register on July 1, 1994 (59 FR 34271)), at a particular point in time may not consultation would not otherwise occur, the Information Quality Act (section 515 include all of the habitat areas that we because, for example, an area is or has of the Treasury and General may later determine are necessary for become unoccupied or the occupancy is Government Appropriations Act for the recovery of the species. For these in question; (2) identifying the physical Fiscal Year 2001 (Pub. L. 106-554; H.R. reasons, a critical habitat designation and biological features essential to the 5658)), and our associated Information does not signal that habitat outside the Mississippi gopher frog and focusing Quality Guidelines, provide criteria, designated critical habitat area is conservation activities on these establish procedures, and provide unimportant or may not be required for essential features and the areas that guidance to ensure that our decisions recovery of the species. support them; (3) providing educational are based on the best scientific data Areas that are important to the benefits to State or county governments available. They require our biologists, to conservation of the species, but are or private entities engaged in activities the extent consistent with the Act and outside the critical habitat designation, or long-range planning in areas essential with the use of the best scientific data will continue to be subject to to the conservation of the species; and available, to use primary and original conservation actions we implement (4) preventing people from causing sources of information as the basis for under section 7(a)(1) of the Act. Areas inadvertent harm to the species. recommendations to designate critical that support populations are also subject Conservation of the Mississippi gopher habitat. to the regulatory protections afforded by frog and the essential features of the When we are determining which areas the section 7(a)(2) jeopardy standard, as habitat will require habitat protection should be designated as critical habitat, determined on the basis of the best and restoration, which will be our primary source of information is available scientific information at the facilitated by knowledge of habitat generally the information developed time of the agency action. Federally locations and the physical and during the listing process for the funded or permitted projects affecting biological features of those habitats. species. Additional information sources listed species outside their designated Therefore, since we have determined may include the recovery plan for the critical habitat areas may still result in that the designation of critical habitat species, articles in peer-reviewed jeopardy findings in some cases. will not likely increase the degree of journals, conservation plans developed Similarly, critical habitat designations threat to the species and may provide by States and counties, scientific status made on the basis of the best available some measure of benefit, we find that surveys and studies, biological information at the time of designation the designation of critical habitat for the assessments, or other unpublished will not control the direction and Mississippi gopher frog is prudent.

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Critical Habitat Determinability Physical and Biological Features pine dominated the uplands; however, In accordance with section 3(5)(A)(i) much of the original habitat has been As stated above, section 4(a)(3) of the converted to pine (often loblolly (P. Act requires the designation of critical and 4(b)(1)(A) of the Act and the regulations at 50 CFR 424.12, in taeda) or slash pine) plantations and has habitat concurrently with the species’ become a closed-canopy forest ‘‘ determining which areas within the listing to the maximum extent prudent unsuitable as habitat for gopher frogs and determinable.’’ Our regulations at 50 geographical area occupied at the time of listing to propose as critical habitat, (Roznik and Johnson 2009a, p. 265). CFR 424.12(a)(2) state that critical During the breeding season, we consider the physical and biological habitat is not determinable when one or Mississippi gopher frogs leave their features essential to the conservation of both of the following situations exist: subterranean retreats in the uplands and (1) Information sufficient to perform the species which may require special migrate to their breeding sites during required analyses of the impacts of the management considerations or rains associated with passing cold designation is lacking, or protection. These include, but are not fronts. Breeding sites are ephemeral (2) The biological needs of the species limited to: (seasonally flooded) isolated ponds (not are not sufficiently well known to (1) Space for individual and connected to other water bodies) located permit identification of an area as population growth and for normal in the uplands. Both forested uplands critical habitat. behavior; and isolated wetlands (see further (2) Food, water, air, light, minerals, or When critical habitat is not discussion of isolated wetlands in Sites other nutritional or physiological for Breeding, Reproduction, and Rearing determinable, the Act provides for an requirements; additional year to publish a critical of Offspring section) are needed to (3) Cover or shelter; provide space for individual and habitat designation (16 U.S.C. (4) Sites for breeding, reproduction, or 1533(b)(6)(C)(ii)). population growth and normal behavior. rearing of offspring; and Few data are available on the distance We reviewed the available (5) Habitats that are protected from information pertaining to the biological between the wetland breeding and disturbance or are representative of the upland terrestrial habitats of post-larval needs of the Mississippi gopher frog, the historic, geographical, and ecological historical distribution of the Mississippi and adult Mississippi gopher frogs. distributions of a species. After breeding, adult Mississippi gopher gopher frog, and the habitat We consider the specific physical and frogs leave pond sites during major characteristics where they currently biological features to be the primary rainfall events. Richter et al. (2001, pp. survive. This and other information constituent elements (PCEs; see 316-321) used radio transmitters to track represent the best scientific and ‘‘Primary Constituent Elements’’ below) a total of 13 adult frogs at Glen’s Pond, commercial data available and led us to laid out in the appropriate quantity and the primary Mississippi gopher frog conclude that the designation of critical spatial arrangement for the conservation breeding site, located in Harrison habitat is determinable for the of the species. We derive the PCEs County, Mississippi. The farthest Mississippi gopher frog. required for the species from the movement recorded was 299 meters (m) Methods biological needs of the Mississippi (981 feet (ft)) by a frog tracked for 63 gopher frog as described in the days from the time of its exit from the As required by section 4(b) of the Act, Background section of this proposed breeding site (Richter et al. 2001, p. we used the best scientific and rule and the final listing rule (66 FR 318). In Florida, closely related Florida commercial data available in 62993). To identify the physical and gopher frogs (Rana capito aesopus) have determining which areas within the biological features essential to the been found up to 2 kilometers (km) (1.2 geographical area occupied by the conservation of the Mississippi gopher miles (mi) from their breeding sites species at the time of listing contain the frog, we have relied on current (Carr 1940, p. 64; Franz et al. 1988, p. physical and biological features conditions at locations where the 82), although how frequently gopher essential to the conservation of the species survives, the limited frogs make these long-distance Mississippi gopher frog that may require information available on this species movements is not known (see special management considerations or and its close relatives, as well as factors discussion in Roznik et al. 2009, p. 192). protections, and which areas outside of associated with the decline of other It is difficult to interpret habitat use the geographical area occupied at the amphibians that occupy similar habitats from the available movement data we time of listing are essential for the in the lower Southeastern Coastal Plain have for the Mississippi gopher frog. conservation of the species. (U.S. Fish and Wildlife Service 2001, However, we have calculated the area of We reviewed the available pp. 62993-63002). a circle, using the value of 350 m (1,148 information pertaining to historical and ft) as the radius around a point Space for Individual and Population current distributions, life histories, and represented by the breeding site, to Growth and for Normal Behavior habitat requirements of this species. Our define the area of habitat we believe sources included peer-reviewed Mississippi gopher frogs are terrestrial would protect the majority of a scientific publications; unpublished amphibians endemic to the longleaf Mississippi gopher frog population’s survey reports; unpublished field pine ecosystem. They spend most of breeding and upland habitat. We chose observations by the Service, State, and their lives underground and occur in the value of 350 m (1,148 ft) by using other experienced biologists; notes and forested habitat consisting of fire- the known farthest distance movement communications from qualified maintained, open-canopied woodlands for the Mississippi gopher frog of 299 m biologists or experts; Service historically dominated by longleaf pine, (rounded up to 300 m) and adding 50 m publications such as the final listing with naturally occurring slash pine (P. (164 ft) to this distance to minimize the rule for the Mississippi gopher frog; and elliotti) in wetter areas. Frequent fires edge effects of the surrounding land use Geographic Information System (GIS) also support a diverse ground cover of as recommended by Semlitsch and data (such as species occurrence data, herbaceous plants, both in the uplands Bodie (2003, pp. 1222-1223). Due to the habitat data, land use, topography, and in the breeding ponds (Hedman et low number of occupied sites for the digital aerial photography, and al. 2000, p. 233; Kirkman et al. 2000, p. species, we are conducting habitat ownership maps). 373). Historically, fire-tolerant longleaf management at potential relocation sites

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with the hope of establishing new Food, Water, Air, Light, Minerals, or of migratory success in post- populations (see discussion above at Other Nutritional or Physiological metamorphic amphibians have Geographic Range, Habitat, Threats, Requirements demonstrated the importance of high and Status section). When possible, we Mississippi gopher frog tadpoles eat levels of survival of these individuals to are managing wetlands within 1,000 m periphyton (microscopic algae, bacteria, population maintenance and persistence (3,281 ft) of each other, in these areas, and protozoans) from surfaces of (Rothermel 2004, pp. 1544-1545). Both adult and juvenile Mississippi as a block in order to create multiple emergent vegetation or along the pond gopher frogs spend most of their lives breeding sites and metapopulation bottom, as is typical of pond-type underground in forested uplands structure (defined as neighboring local tadpoles (Duellman and Trueb 1986, p. (Richter et al. 2001, p. 318). populations close enough to one another 159). Juvenile and adult gopher frogs are Underground retreats include gopher carnivorous. Insects found in their that dispersing individuals could be tortoise burrows, small mammal exchanged (gene flow) at least once per stomachs have included carabid burrows, stump holes, and root mounds generation) in support of recovery (Pasimachus sp.) and scarabaeid (genera of fallen trees (Richter et al. 2001, p. (Marsh and Trenham 2001, p. 40; Canthon sp. and Ligryus sp.) beetles 318). Availability of appropriate Richter et al. 2003, p. 177). (Netting and Goin 1942, p. 259) and underground sites is especially Ceuthophilus crickets (Milstrey 1984, p. Due to fragmentation and destruction important for juveniles in their first 10). Mississippi gopher frogs are gape- year. Survival of juvenile gopher frogs of habitat, the current range of naturally limited (limited by the size of the jaw occurring Mississippi gopher frogs has in north-central Florida was found to be opening) predators with a diet probably dependent on their use of underground been reduced to three sites. In addition, similar to that reported for other gopher the gopher tortoise, whose burrows are refugia (Roznik and Johnson 2009b, p. frogs, including frogs, toads, beetles, 431). Mortality for a frog occupying an considered to be optimal terrestrial hemipterans, grasshoppers, spiders, habitat for gopher frogs, is a rare and underground refuge was estimated to be roaches, and earthworms (Dickerson only four percent of the likelihood of declining species that is listed as a 1906, p. 196; Carr 1940, p. 64). Within mortality for a frog not occupying an threatened species under the Act within the pine uplands, a diverse and underground refuge (Roznik and the range of the Mississippi gopher frog. abundant herbaceous layer consisting of Johnson 2009b, p. 434). Fragmentation of the frog’s habitat has native species, maintained by frequent Based on the biological information subjected the species’ small, isolated fires, is important to maintain the prey and needs discussed above, we believe populations to genetic isolation and base for juvenile and adult Mississippi it is essential that Mississippi gopher reduction of space for reproduction, gopher frogs. Wetland water quality and frog habitat have appropriate development of young, and population an open canopy (Skelly et al. 2002, p. connectivity habitat between wetland maintenance; thus, fragmentation has 983) are important to the maintenance and upland sites to support survival increased the likelihood of population of the periphyton that serves as a food during migration. Additionally, we extinction (U.S. Fish and Wildlife source for Mississippi gopher frog believe it is essential that non-wetland Service 2001, pp. 62993-63002). Genetic tadpoles. habitats contain a variety of variation and diversity within a species Based on the biological information underground retreats such as gopher are essential for recovery, adaptation to and needs discussed above, we believe tortoise burrows, small mammal environmental changes, and long-term it is essential that Mississippi gopher burrows, stump holes, and root mounds viability (capability to live, reproduce, frog habitat consist of ephemeral, of fallen trees to provide cover and isolated ponds with emergent and develop) (Harris 1984, pp. 93-107). shelter for the Mississippi gopher frog. vegetation, and open-canopied pine Long-term viability is founded on the uplands with a diverse herbaceous Sites for Breeding, Reproduction, or existence of numerous interbreeding layer, to provide for adequate food Rearing local populations throughout the range sources for the frog. Mississippi gopher frog breeding sites (Harris 1984, pp. 93-107). Connectivity are isolated ponds that dry completely of Mississippi gopher frog breeding and Cover or Shelter on a cyclic basis. Faulkner (66 FR nonbreeding habitat within the Amphibians need to maintain moist 62994) conducted hydrologic research at geographic area occupied by the species skin for respiration (breathing) and the Glen’s Pond site on DeSoto National must be maintained to support the osmoregulation (controlling the Forest, Harrison County, Mississippi. He species’ survival (Semlitsch 2002, p. amounts of water and salts in their described the pond as a depressional 624; Harper et al. 2008, p. 1205). bodies) (Duellman and Trueb 1986, pp. feature on a topographic high. The Additionally, connectivity of these sites 197-222). Since Mississippi gopher frogs dominant source of water to the pond is with other areas outside the disperse from their aquatic breeding rainfall within a small, localized geographical area occupied currently by sites to the uplands where they live as watershed that extends 61 to 122 m (200 the Mississippi gopher frog is essential adults, desiccation (drying out) can be a to 400 ft) from the pond’s center. for the conservation of the species limiting factor in their movements. Substantial winter rains are needed to (Semlitsch 2002, p. 624; Harper et al. Thus, it is important that areas ensure that the pond fills sufficiently to 2008, p. 1205). connecting their wetland and terrestrial allow hatching, development, and habitats are protected in order to metamorphosis (change to adults) of Based on the biological information provide cover and appropriate moisture larvae. The timing and frequency of and needs discussed above, it is regimes during their migration. Richter rainfall are critical to the successful essential to protect ephemeral isolated et al. (2001, pp. 317-318) found that reproduction and recruitment of ponds and associated forested uplands, during migration, Mississippi gopher Mississippi gopher frogs. Adult frogs and connectivity of these areas, to frogs used clumps of grass or leaf litter move to wetland breeding sites during accommodate breeding, growth, and for refuge. Protection of this connecting heavy rain events, usually from January other normal behaviors of the habitat may be particularly important to late March (Richter and Seigel 2002, Mississippi gopher frog and to promote for juveniles as they move out of the p. 964). Studies at Glen’s Pond indicate genetic flow within the species. breeding pond for the first time. Studies that this breeding pond is

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approximately 1.5 hectares (ha) (3.8 (1) Breeding ponds, geographically enough to one another that dispersing acres (ac)) when filled and attains a isolated from other waterbodies and individuals could be exchanged (gene maximum depth of 1.1 m (3.6 ft) embedded in forests historically flow) at least once per generation) in (Thurgate and Pechmann 2007, p. 1846). dominated by longleaf pine support of recovery (Marsh and The pond is hard-bottomed, has an open communities, that are small (generally Trenham 2001, p. 40; Richter et al. canopy, and contains emergent and <0.4 to 4.0 hectares (ha) (<1 to 10 acres 2003, p. 177). submergent vegetation. It is especially (ac)), ephemeral, and acidic. Specific With this proposed designation of important that a breeding pond have an conditions necessary in breeding ponds critical habitat, we intend to conserve open canopy: though the mechanism is to allow for successful reproduction of the physical and biological features unclear, it is believed an open canopy Mississippi gopher frogs are: An open essential to the conservation of the is critical to tadpole development. canopy with emergent herbaceous species, through the identification of the Experiments conducted by Thurgate and vegetation for egg attachment; an appropriate quantity and spatial Pechmann (2007, pp. 1845-1852) absence of large, predatory fish which arrangement of the PCEs sufficient to demonstrated the lethal and sublethal prey on frog larvae; water quality such support the life history functions of the effects of canopy closure on Mississippi that frogs, their eggs, or larvae are not species. Each of the areas proposed as gopher frog tadpoles. The general exposed to pesticides or chemicals and critical habitat in this rule contains habitat attributes of the other three sediment associated with road runoff; sufficient PCEs to provide for one or Mississippi gopher frog breeding ponds and surface water that lasts for a more of the life history functions of the are similar to those of Glen’s Pond. minimum of 195 days during the Mississippi gopher frog. Female Mississippi gopher frogs attach breeding season to allow a sufficient Special Management Considerations or their eggs to rigid vertical stems of period for larvae to hatch, mature, and Protection emergent vegetation (Young 1997, p. metamorphose. 48). Breeding ponds typically dry in (2) Upland forested nonbreeding When designating critical habitat, we early to mid-summer, but on occasion habitat historically dominated by assess whether the specific areas within have remained wet until early fall longleaf pine, adjacent and accessible to the geographical area occupied by the (Richter and Seigel 1998, p. 24). and from breeding ponds, that is species at the time of listing contain Breeding ponds of closely related maintained by fires frequent enough to physical and biological features that are gopher frogs in Alabama and Florida support an open canopy and abundant essential to the conservation of the have similar structure and function to herbaceous ground cover and gopher species and whether those features may those of the Mississippi gopher frog tortoise burrows, small mammal require special management (Bailey 1990, p. 29; Palis 1998, p. 217; burrows, stump holes, or other considerations or protection. Greenberg 2001, p. 74). underground habitat that the The essential physical and biological An unpolluted wetland with water Mississippi gopher frog depends upon features within the area we are free of predaceous fish, sediment, for food, shelter, and protection from proposing for designation as critical pesticides, and chemicals associated the elements and predation; and habitat that is within the geographical with road runoff is important for egg (3) Accessible upland connectivity area occupied by the species at the time development, tadpole growth and habitat between breeding and it was listed, will require some level of development; and successful mating nonbreeding habitats which allows for management to address the current and and egg-laying by adult frogs. Mississippi gopher frog movements future threats. This area of proposed Based on the biological information between and among such sites and that critical habitat is not presently under and needs discussed above, we believe is characterized by an open canopy and special management or protection that in order to provide for breeding and abundant native herbaceous species and provided by a legally operative plan or development of the species, it is subsurface structure which provides agreement for the conservation of the essential that Mississippi gopher frog shelter for Mississippi gopher frogs Mississippi gopher frog. Various habitat contain isolated ponds with hard during seasonal movements, such as activities in or adjacent to this area of bottoms, open canopies, and emergent that created by deep litter cover, clumps proposed critical habitat may affect one vegetation, and water free of predaceous of grass, or burrows. or more of the PCEs. For example, fish, sediment, pesticides, and Critical habitat was delineated as features in this proposed critical habitat chemicals associated with road runoff. described above using the value of 350 designation may require special In summary, based on the biological m (1,148 ft) as the radius around a point management due to threats posed by information and needs described above, represented by the breeding site, to land use conversions, primarily urban essential Mississippi gopher frog habitat define the area of habitat we believe development and conversion to consists of upland forested terrestrial would protect the majority of a agriculture and pine plantations; stump habitat, maintained by frequent fires, Mississippi gopher frog population’s removal and other soil-disturbing and unpolluted isolated wetland breeding and upland habitat. We chose activities which destroy the below- breeding sites, and the connectivity of the value of 350 m (1,148 ft) by using ground structure within forest soils; fire these sites, to accommodate feeding, the known farthest distance movement suppression and low fire frequencies; breeding, growth, and other normal for the Mississippi gopher frog of 299 m wetland destruction and degradation; behaviors of the Mississippi gopher frog (rounded up to 300 m) and adding 50 m random effects of drought or floods; off- and to promote genetic flow within the (164 ft) to this distance to minimize the road vehicle use; gas, water, electrical species. edge effects of the surrounding land use power, and sewer easements; and Based on our current knowledge of as recommended by Semlitsch and activities which disturb underground life history, biology, and ecology of the Bodie (2003, pp. 1222-1223). When refugia used by Mississippi gopher frogs Mississippi gopher frog and the possible, we are managing wetlands for foraging, protection from predators, requirements of the habitat to sustain within 1,000 m (3,281 ft) of each other, and shelter from the elements. Other the essential life history functions of the in these areas, as a block in order to activities that may affect PCEs in the species, we determined that the PCEs create multiple breeding sites and proposed critical habitat units include specific to the Mississippi gopher frog metapopulation structure (defined as those listed in the Effects of Critical are: neighboring local populations close Habitat Designation section below.

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The designation of critical habitat outside the geographical area occupied management considerations or does not imply that lands outside of by the species at the time of listing, are protection and are themselves essential critical habitat do not play an important essential to the conservation of the to the conservation of the species. role in the conservation of the species because they provide additional Currently Unoccupied Habitat Proposed Mississippi gopher frog. Activities with habitat for maintenance of newly as Critical Habitat a Federal nexus that may affect areas discovered populations and for outside of critical habitat, such as population expansion which is needed The currently occupied habitat of the development; road construction and to conserve the Mississippi gopher frog. Mississippi gopher frog is highly maintenance; and gas, water, electrical We began our critical habitat analysis localized and fragmented. With such power, and sewer easements and/or by evaluating the Mississippi gopher limited distribution, the Mississippi pipelines, are still subject to review frog in the context of its historic gopher frog is at high risk of extinction under section 7 of the Act if they may distribution to determine what portion and highly susceptible to stochastic affect the Mississippi gopher frog, of its range still contains the physical events. Pond-breeding amphibians are because Federal agencies must consider and biological features that are essential particularly susceptible to drought, as both effects to the species and effects to to the conservation of the species. We breeding cannot occur if breeding ponds critical habitat independently. The assessed the critical life-history do not receive adequate rainfall. Isolated Service should be consulted for components of the Mississippi gopher populations, such as these of the disturbances to areas both within the frog, as they relate to habitat. Mississippi gopher frog, are highly proposed critical habitat units as well as Mississippi gopher frogs require small, susceptible to random events. Protection outside the proposed critical habitat acidic, depressional standing bodies of of a single, isolated, minimally viable designation in other geographic areas freshwater for breeding, upland pine population risks the extirpation or within the historical range of the forested habitat that has an open canopy extinction of a species as a result of Mississippi gopher frog where the maintained by fire for non-breeding harsh environmental conditions, species may still persist. The habitat, and upland connectivity habitat catastrophic events, or genetic prohibitions of section 9 of the Act areas that allow for movement between deterioration over several generations against the take of listed species also nonbreeding and breeding sites. (Kautz and Cox 2001, p. 59). To reduce continue to apply both inside and To determine which areas should be the risk of extinction through these outside of designated critical habitat. designated as critical habitat, we processes, it is important to establish evaluated the essential physical and multiple protected subpopulations Criteria Used to Identify Proposed biological features of Mississippi gopher across the landscape (Soule´ and Critical Habitat frog habitat as it exists within the Simberloff 1986, pp. 25-35; Wiens 1996, Using the best scientific and currently occupied habitat. As pp. 73-74). commercial data available, as required discussed above, we considered the We used information from surveys by section 4(b) of the Act, we identified following criteria in the selection of and reports prepared by the Alabama those areas to propose for designation as areas that contain the essential features Department of Conservation and Natural critical habitat, within the geographical for the Mississippi gopher frog when Resources; Mississippi Department of area occupied by the species at the time designating units: (1) The historic Wildlife, Fisheries, and Parks; and of listing, that contain those physical distribution of the species; (2) presence Mississippi gopher frog researchers, and biological features essential to the of open-canopied, isolated wetlands; (3) along with Service data and records, to conservation of the Mississippi gopher presence of open-canopied, upland pine search for additional locations with the frog and which may require special forest in sufficient quantity around each potential to be occupied by the management considerations or wetland location to allow for sufficient Mississippi gopher frog. Habitat in protection. We also considered the area survival and recruitment to maintain a Alabama and Louisiana is severely outside the geographical area occupied breeding population over the long term; limited, so our focus was on identifying by the species at the time of listing that (4) open-canopied, forested connectivity sites in Mississippi. Wetlands is essential for the conservation of the habitat between wetland and upland throughout the coastal counties of Mississippi gopher frog. Many of the sites; and (5) multiple isolated wetlands Mississippi were identified using U.S. areas we considered for inclusion are in upland habitat that would allow for Geological Survey topographic maps, part of ongoing recovery initiatives for the development of metapopulations. National Wetland Inventory maps, this species. Natural Resource Conservation Service We used the best scientific data Currently Occupied Habitat Proposed as county soil survey maps, and satellite available in determining areas that Critical Habitat imagery. Habitat with the best potential contain the features that are essential to As discussed above, currently of establishing the physical and the conservation of the Mississippi occupied habitat for the Mississippi biological features essential to the gopher frog that are those physical and gopher frog is limited to four sites: One conservation of the Mississippi gopher biological features laid out in the location on the DeSoto National Forest, frog were concentrated on the DeSoto appropriate quantity and spatial Harrison County, Mississippi; one site National Forest in Forrest, Harrison, and arrangement for the conservation of the on State land in Jackson County, Perry Counties in southern Mississippi. species (see the Physical and Biological Mississippi; and two sites on private Some additional sites were found in Features section). We are proposing to land in Jackson County, Mississippi. Jackson County on Federal land being designate as critical habitat one site Only the Harrison County site was managed by the State as a Wildlife within the geographical area that was occupied at the time of listing, while the Management Area and on private land occupied by the Mississippi gopher frog remaining sites were found to be being managed as a wetland mitigation at the time of listing, and which is occupied, or became occupied, after the bank. Habitat restoration efforts have known to be currently occupied. We are date of listing. We believe that all been successful in establishing at least also proposing to designate additional currently occupied areas contain those one of the PCEs on each of these sites, areas, both currently occupied and physical and biological features and management is continuing, with the unoccupied, as critical habitat. We have essential to the conservation of these goal of establishing all of the PCEs at all determined that these areas, which are species which may require special of the sites.

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The currently unoccupied sites that recognize that designation of critical areas, such as lands covered by we are proposing as critical habitat are habitat may not include all habitat areas buildings, roads, and other structures, all within the historical range of the that we may eventually determine are because such lands lack PCEs for the Mississippi gopher frog. We believe that necessary for the recovery of the species Mississippi gopher frog. The scale of the the designation of additional areas not and that for this reason, a critical habitat maps we prepared under the parameters known to be currently occupied is designation does not signal that habitat for publication within the Code of essential for the conservation of the outside the designated area is Federal Regulations may not reflect the Mississippi gopher frog. The range of unimportant or may not promote the exclusion of such developed lands. Any the Mississippi gopher frog has been recovery of the species. such lands inadvertently left inside severely curtailed, occupied habitats are We delineated the critical habitat unit critical habitat boundaries shown on the limited and isolated, and population boundaries using the following steps: maps of this proposed rule have been sizes are extremely small. While the (1) We used digital aerial photography excluded by text in the proposed rule four occupied units provide habitat for using ArcMap 9.3.1 to map the specific and are not proposed for designation as current populations, they may be at risk location of the breeding site occupied by critical habitat. Therefore, Federal of extirpation and extinction from the Mississippi gopher frog at the time action involving these lands would not stochastic events that occur as periodic of listing, and those locations of trigger section 7 consultation with natural events or existing or potential potential breeding sites outside the respect to critical habitat and the human-induced events (U.S. Fish and geographical area occupied by the requirement of no adverse modification Wildlife Service 2001, pp. 62993- species at the time it was listed, both unless the specific action would affect 63002). The inclusion of essential occupied and not occupied, that were the physical and biological features in unoccupied areas will provide habitat determined to be essential for the the adjacent critical habitat. for population translocation and will conservation of the species. decrease the risk of extinction of the (2) We delineated proposed critical Proposed Critical Habitat Designation species. Based on the best scientific habitat areas by buffering the above data, we believe that these areas not locations by a distance of 350 m (1,148 We are proposing to designate 11 currently occupied by the Mississippi ft) where possible to incorporate all units totaling approximately 792 ha gopher frog are essential for the PCEs within the critical habitat (1,957 ac) as critical habitat for the conservation of the species. boundaries. Mississippi gopher frog. The critical We have determined that, with proper (3) We used aerial imagery and habitat areas described below constitute protection and management, the areas ArcMap to connect critical habitat areas our best assessment of areas that we are proposing for critical habitat are within 1,000 m (3,281 ft) of each other currently meet the definition of critical adequate for the conservation of the to create metapopulation structure habitat for the Mississippi gopher frog. species based on our current where possible. Table 1 identifies the proposed units for understanding of the species’ When determining proposed critical the species and shows the occupancy of requirements. However, as discussed in habitat boundaries, we made every the subunits within the proposed the Critical Habitat section above, we effort to avoid including developed 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.

Currently Occupied Occupied at Time of (but not known to be Unit County Listing occupied at the time Currently Unoccupied Total Unit Area of listing)

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 each critical habitat unit determined to the Mississippi gopher frog. Hectare and and ownership encompassed within meet the definition of critical habitat for acre values were individually computer-

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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.

Ownership Unit County 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 practices that could destroy below- high risk of extirpation for stochastic unit and reasons why they meet the ground soil structures such as stump events, such as disease or drought. definition of critical habitat below. removal; hydrologic changes resulting Maintaining this area as suitable habitat from ditches, and/or adjacent highways into which Mississippi gopher frogs Unit 1: Harrison County, Mississippi and roads that could alter the ecology of could be translocated is essential to Unit 1 encompasses 277 ha (685 ac) the breeding pond and surrounding decrease the risk of extinction of the on Federal and private lands in Harrison terrestrial habitat; wetland degradation; species resulting from stochastic events County, Mississippi. This unit, between random effects of drought or floods; off- and provide for the species’ eventual U.S. Hwy. 49 and Old Hwy. 67, is road vehicle use; and gas, water, recovery. We determined that this area approximately 0.9 km (0.56 mi) north of electrical power, and sewer easements. is essential to the conservation of the the Biloxi River. It is located On portions of Unit 1 within the species because the ponds (PCE 1) and approximately 3.2 km (2 mi) east of U.S. geographical area of the species the surrounding uplands (PCEs 2 and 3) Hwy. 49 and approximately 2.8 km occupied at the time of listing, and are suitable habitat within the dispersal (1.75 mi) west of Old Hwy. 67. Within within private ownership, special range of the Mississippi gopher frog and this unit, approximately 273 ha (675 ac) management is needed to address the thus provide the potential of are in the DeSoto National Forest and 4 threats of direct agricultural and urban establishing new breeding ponds and ha (10 ac) are in private ownership. development (see also discussion in metapopulation structure which will Thirty-nine ha (96 ac) of Unit 1 are Special Management Considerations or support recovery of the species. located around the only breeding pond Protections section). (Glen’s Pond) known for the Mississippi Most of Unit 1 (238 ha (588 ac)) is Unit 2: Harrison County, Mississippi gopher frog when it was listed in 2001 currently unoccupied. However, this Unit 2 encompasses 39 ha (96 ac) on and, as such, are within the unoccupied area consists of areas, Federal land in Harrison County, geographical area of the species within 1,000 m (3,281 ft) of each other Mississippi. This unit is located on the occupied at the time of listing. Glen’s or Glen’s Pond, that we believe will DeSoto National Forest approximately 8 Pond and the habitat surrounding it, the create metapopulation structure and km (5 mi) east of Old Hwy. 67 and majority of which is on the DeSoto protect the Mississippi gopher frog from approximately 8.5 km (5.3 mi) southeast National Forest, support most of the extinction. The unoccupied area of the community of Success. known Mississippi gopher frog surrounds three ponds on the DeSoto Unit 2 is not within the geographic populations. Threats to the Mississippi National Forest given the names of range of the species occupied at the time gopher frog and its habitat in areas of Reserve Pond, Pony Ranch Pond, and of listing and is currently unoccupied. Unit 1, within the geographical area of New Pond during on-going recovery This area surrounds a pond on the the species occupied at the time of initiatives. The U.S. Forest Service is DeSoto National Forest given the name listing, that may require special actively managing this area to benefit of Carr Bridge Road Pond during management and protection of PCEs 1, the recovery of the Mississippi gopher ongoing recovery initiatives when it was 2, and 3, include the potential of: Fire frog. Due to its low number of remaining selected as a Mississippi gopher frog suppression and low fire frequencies; populations and severely restricted translocation site. The U.S. Forest detrimental alterations in forestry range, the Mississippi gopher frog is at Service is actively managing this area to

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benefit the recovery of the Mississippi which are suitable habitats within the community of Vancleave. This land is gopher frog. Due to its low number of dispersal range of the occupied site, and owned by the Army Corps of Engineers remaining populations and severely this area also provides metapopulation (Corps) and managed by the Mississippi restricted range, the Mississippi gopher structure which will support recovery of Department of Wildlife, Fisheries, and frog may be at risk of extirpation for the species. Parks (MDWFP). stochastic events, such as disease or Unit 5 is not within the geographic Unit 4: Jackson County, Mississippi drought. Maintaining this area as range of the species occupied at the time suitable habitat into which Mississippi Unit 4 encompasses 67 ha (ac) on of listing and is currently unoccupied. gopher frogs could be translocated is private land in Jackson County, This area consists of a pond and its essential to decrease the potential risk of Mississippi. This unit is located associated uplands on the WMA and extinction of the species resulting from approximately 10.8 km (6.8 mi) north of has been given the name of Mayhaw stochastic events and provide for the Interstate 10. It is 0.47 km (0.3 mi) north Road Pond during ongoing recovery species’ eventual recovery. We of Jim Ramsey Road, approximately 3.4 initiatives. Unit 5 is being actively determined that this area is essential to km (2 mi) west of State Hwy. 57 and 6.2 managed by the Corps and MDWFP to the conservation of the Mississippi km (3.9 mi) west of the community of benefit the recovery of the Mississippi gopher frog because it contains features Vancleave. gopher frog. Due to its low number of essential to the conservation of the Unit 4 is not within the geographic remaining populations and severely species, a potential breeding pond (PCE range of the species occupied at the time restricted range, the Mississippi gopher 1) and the surrounding uplands (PCEs 2 of listing and contains both areas that frog may be at risk of extirpation for and 3), that provide habitat for future are currently occupied and areas that stochastic events, such as disease or translocation of the species in support are currently unoccupied. Thirty-nine drought. Maintaining this area of of Mississippi gopher frog recovery. ha (96 ac) of Unit 4 are located around suitable habitat, into which Mississippi a breeding pond, designated Mike’s gopher frogs could be translocated, is Unit 3: Jackson County, Mississippi Pond, that was discovered to be essential to decrease the potential risk of Unit 3 encompasses 111 ha (274 ac) occupied in 2004, subsequent to the extinction of the species resulting from on private land in Jackson County, listing of the Mississippi gopher frog. stochastic events and provide for the Mississippi. This unit is located The remaining balance (28 ha (69 ac)) of species’ eventual recovery. We approximately 0.3 km (0.2 mi) north of Unit 4 is not currently occupied. This determined that this area is essential to Interstate 10 and approximately 1.6 km portion of Unit 4 contains an additional the conservation of the species because (1 mi) west of State Hwy. 57. pond which represents a potential the pond (PCE 1) and the surrounding Unit 3 is not within the geographic Mississippi gopher frog breeding site uplands (PCEs 2 and 3) are suitable range of the species occupied at the time and also connectivity habitat between it habitat for attempting to establish a of listing and contains both areas that and Mike’s Pond. Unit 4 is being Mississippi gopher frog population in are currently occupied and areas that actively managed by the landowners to support of recovery of the species. are currently unoccupied. Thirty-nine benefit the recovery of the Mississippi ha (96 ac) of Unit 3 are currently gopher frog. Due to its low number of Unit 6: Jackson County, Mississippi occupied as a result of translocation remaining populations and severely Unit 6 encompasses 39 ha (96 ac) on efforts conducted in 2004, 2005, 2007, restricted range, the Mississippi gopher State land in Jackson County, and 2008. Seventy-two 72 ha (178 ac) of frog may be at risk of extirpation from Mississippi. This unit is located on 16th Unit 3 are currently unoccupied. Unit 3 stochastic events, such as disease or section land, approximately 4.4 km (2.8 consists of three ponds and their drought. Maintaining this area of mi) east of State Hwy. 63, 4.5 km (2.8 surrounding upland areas and is on occupied habitat, and suitable habitat mi) west of the Escatawpa River, and 4.0 private land being managed as a into which Mississippi gopher frogs km (2.5 mi) northeast of Helena, wetland mitigation bank. It is within the could be translocated, is essential to Mississippi. It is held in trust by the acquisition boundary of the Mississippi decrease the potential risk of extinction state of Mississippi as a local funding Sandhill Crane National Wildlife Refuge of the species resulting from stochastic source for education in Jackson County. and actively being managed by the events and provide for the species’ The local Jackson County School board landowners to benefit the recovery of eventual recovery. We determined that has jurisdiction and control of the land. the Mississippi gopher frog. Due to its this area is essential to the conservation Unit 6 is not within the geographic low number of remaining populations of the species because it represents range of the species occupied at the time and severely restricted range, the habitat naturally occupied by the of listing but is currently occupied. Unit Mississippi gopher frog may be at risk Mississippi gopher frog (PCEs 1, 2, and 6 contains a breeding pond, designated of extirpation for stochastic events, such 3), and provides an additional pond McCoy’s Pond, which was discovered as disease or drought. Maintaining this (PCE 1) and surrounding uplands (PCEs subsequent to the listing of the area as suitable habitat into which 2 and 3) which are suitable habitats Mississippi gopher frog. Due to its low Mississippi gopher frogs could be within the dispersal range of the number of remaining populations and translocated is essential to decrease the occupied site. Thus, this area provides severely restricted range, the potential risk of extinction of the for the potential establishment of a new Mississippi gopher frog may be at risk species resulting from stochastic events breeding pond and metapopulation of extirpation for stochastic events, such and provide for the species’ eventual structure which will support recovery of as disease or drought. Maintaining this recovery. We determined that this area the species. area of currently occupied habitat is is essential to the conservation of the essential to decrease the potential risk of species because the pond (PCE 1) and Unit 5: Jackson County, Mississippi extinction of the species resulting from the surrounding uplands (PCEs 2 and 3) Unit 5 encompasses 39 ha (96 ac) on stochastic events and provide for the have proven to be suitable habitat for Federal land in Jackson County, species’ eventual recovery. We establishing a Mississippi gopher frog Mississippi. This unit is located on the determined that this area is essential to population, this area also provides Ward Bayou Wildlife Management Area the conservation of the species because additional breeding ponds (PCE 1) and (WMA) approximately 5.2 km (3.3 mi) it represents habitat naturally occupied surrounding uplands (PCEs 2 and 3) northeast of State Hwy. 57 and the by the Mississippi gopher frog (PCEs 1,

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2, and 3) and will support recovery of stochastic events, such as disease or intersection of the Perry County, Stone the species. drought. Maintaining this area as County, and George County lines, suitable habitat into which Mississippi approximately 0.23 km (0.14 mi) north Unit 7: Forrest County, Mississippi gopher frogs could be translocated is of Benndale Road, and approximately Unit 7 encompasses 39 ha (96 ac) on essential to decrease the potential risk of 6.7 km (4.2 mi) north of State Hwy. 26. Federal land in Jackson County, extinction of the species resulting from Unit 10 is not within the geographic Mississippi. This unit is located on the stochastic events and provide for the range of the species occupied at the time DeSoto National Forest approximately species’ eventual recovery. We of listing and is currently unoccupied. 2.1 km (1.3 mi) east of U.S. Hwy. 49, determined that this area is essential to Unit 10 surrounds a pond on the DeSoto approximately 1.9 km (1.2 mi) south of the conservation of the Mississippi National Forest selected as a future Black Creek, and approximately 3.2 km gopher frog because it contains features Mississippi gopher frog translocation (2 mi) south of the community of essential to the conservation of the site during ongoing recovery initiatives. Brooklyn, Mississippi. species, a potential breeding pond (PCE The U.S. Forest Service is actively Unit 7 is not within the geographic 1) and the surrounding uplands (PCEs 2 managing this area to benefit the range of the species occupied at the time and 3), that provide habitat for future recovery of the Mississippi gopher frog. of listing and is currently unoccupied. translocation of the species in support Due to its low number of remaining This area surrounds a pond on the of Mississippi gopher frog recovery. populations and severely restricted DeSoto National Forest selected as a range, the Mississippi gopher frog may future Mississippi gopher frog Unit 9: Perry County, Mississippi be at risk of extirpation for stochastic translocation site during ongoing Unit 9 encompasses 56 ha (138 ac) on events, such as disease or drought. recovery initiatives. The U.S. Forest Federal land and 8 ha (20 ac) on private Maintaining this area as suitable habitat Service is actively managing this area to land in Perry County, Mississippi. This into which Mississippi gopher frogs benefit the recovery of the Mississippi unit is located on the DeSoto National could be translocated is essential to gopher frog. Due to its low number of Forest at the intersection of Benndale decrease the potential risk of extinction remaining populations and severely Road and Mars Hill Road, of the species resulting from stochastic restricted range, the Mississippi gopher approximately 2.6 km (1.6 mi) events and provide for the species’ frog may be at risk of extirpation for northwest of the intersection of the eventual recovery. We determined that stochastic events, such as disease or Perry County, Stone County, and George this area is essential to the conservation drought. Maintaining this area as County lines and approximately 7.2 km of the Mississippi gopher frog because it suitable habitat into which Mississippi (4.5 mi) north of State Hwy. 26. contains features essential to the gopher frogs could be translocated is Unit 9 is not within the geographic conservation of the species, a potential essential to decrease the potential risk of range of the species occupied at the time breeding pond (PCE 1) and the extinction of the species resulting from of listing and is currently unoccupied. surrounding uplands (PCEs 2 and 3), stochastic events and provide for the Unit 9 surrounds two ponds on the that provide habitat for future species’ eventual recovery. We DeSoto National Forest selected as a translocation of the species in support determined that this area is essential to future Mississippi gopher frog of Mississippi gopher frog recovery. the conservation of the Mississippi translocation sites during on-going gopher frog because it contains features recovery initiatives. The U.S. Forest Unit 11: Perry County, Mississippi essential to the conservation of the Service is actively managing this area to Unit 11 encompasses 39 ha (96 ac) on species, a potential breeding pond (PCE benefit the recovery of the Mississippi Federal land in Perry County, 1) and the surrounding uplands (PCEs 2 gopher frog. Due to its low number of Mississippi. This unit is located on the and 3), that provide habitat for future remaining populations and severely DeSoto National Forest approximately reintroduction of the species in support restricted range, the Mississippi gopher 1.6 km (1.0 mi) east of Mars Hill Road, of Mississippi gopher frog recovery. frog is at high risk of extirpation for approximately 4.2 km (2.6 mi) north of stochastic events, such as disease or the intersection of the Perry County, Unit 8: Forrest County, Mississippi drought. Maintaining this area as Stone County, and George County lines, Unit 8 encompasses 39 ha (96 ac) on suitable habitat into which Mississippi and approximately 10.5 km (6.6 mi) Federal land in Forrest County, gopher frogs could be translocated is north of State Hwy. 26. Mississippi. This unit is located on the essential to decrease the risk of Unit 11 is not within the geographic DeSoto National Forest approximately extinction of the species resulting from range of the species occupied at the time 4.3 km (2.7 mi) east of U.S. Hwy. 49, stochastic events and provide for the of listing and is currently unoccupied. approximately 4.6 km (2.9 mi) south of species’ eventual recovery. We Unit 11 surrounds a pond on the DeSoto Black Creek, and approximately 6.1 km determined that this area is essential to National Forest selected as a future (3.8 mi) southeast of the community of the conservation of the Mississippi Mississippi gopher frog translocation Brooklyn, Mississippi. gopher frog because it contains features site during on-going recovery initiatives. Unit 8 is not within the geographic essential to the conservation of the The U.S. Forest Service is actively range of the species occupied at the time species, two potential breeding ponds managing this area to benefit the of listing and is currently unoccupied. (PCE 1) and the surrounding uplands recovery of the Mississippi gopher frog. This area surrounds a pond on the (PCEs 2 and 3), that provide habitat for Due to its low number of remaining DeSoto National Forest selected as a future translocation of the species in populations and severely restricted future Mississippi gopher frog support of Mississippi gopher frog range, the Mississippi gopher frog may translocation site during ongoing recovery. be at risk of extirpation for stochastic recovery initiatives. The U.S. Forest events such as disease or drought. Service is actively managing this area to Unit 10: Perry County, Mississippi Maintaining this area as suitable habitat benefit the recovery of the Mississippi Unit 10 encompasses 39 ha (96 ac) on into which Mississippi gopher frogs gopher frog. Due to its low number of Federal land in Perry County, could be translocated is essential to remaining populations and severely Mississippi. This unit is located on the decrease the potential risk of extinction restricted range, the Mississippi gopher DeSoto National Forest approximately of the species resulting from stochastic frog may be at risk of extirpation for 0.5 km (0.3 mi) northeast of the events and provide for the species’

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eventual recovery. We determined that If we list a species or designate those actions with discretionary this area is essential to the conservation critical habitat, section 7(a)(2) of the Act involvement or control may affect of the Mississippi gopher frog because it requires Federal agencies to ensure that subsequently listed species or contains features essential to the activities they authorize, fund, or carry designated critical habitat. conservation of the species, a potential out are not likely to jeopardize the Federal activities that may affect the breeding pond (PCE 1) and the continued existence of the species or to Mississippi gopher frog or its designated surrounding uplands (PCEs 2 and 3), destroy or adversely modify its critical critical habitat will require section 7 that provide habitat for future habitat. If a Federal action may affect a consultation under the Act. Activities translocation of the species in support listed species or its critical habitat, the on State, Tribal, local, or private lands of Mississippi gopher frog recovery. responsible Federal agency (action requiring a Federal permit (such as a agency) must enter into consultation permit from the U.S. Army Corps of Effects of Critical Habitat Designation with us. As a result of this consultation, Engineers under section 404 of the Section 7 Consultation we document compliance with the Clean Water Act (33 U.S.C. 1251 et seq.) requirements of section 7(a)(2) through or a permit under section 10 of the Act Section 7(a)(2) of the Act requires our issuance of: or involving some other Federal action Federal agencies, including the Service, • A concurrence letter for Federal (such as funding from the Federal to ensure that actions they fund, actions that may affect, but are not Highway Administration, Federal authorize, or carry out are not likely to likely to adversely affect, listed Aviation Administration, or the Federal destroy or adversely modify critical species or critical habitat; or Emergency Management Agency) are habitat. Decisions by the Fifth and • A biological opinion for Federal subject to the section 7 consultation Ninth Circuits Courts of Appeals have actions that may affect, and are process. Federal actions not affecting invalidated our definition of likely to adversely affect, listed listed species or critical habitat, and ‘‘destruction or adverse modification’’ species or critical habitat. actions on State, Tribal, local, or private (50 CFR 402.02) (see Gifford Pinchot When we issue a biological opinion lands that are not Federally funded, Task Force v. U.S. Fish and Wildlife concluding that a project is likely to authorized, or permitted, do not require Service, 378 F.3d 1059 (9th Cir. 2004) jeopardize the continued existence of a section 7 consultations. listed species or destroy or adversely and Sierra Club v. U.S. Fish and Application of the ‘‘Adverse modify critical habitat, we also provide Wildlife Service, 245 F.3d 434, 442 (5th Modification’’ Standard Cir. 2001)), and we do not rely on this reasonable and prudent alternatives to regulatory definition when analyzing the project, if any are identifiable. We The key factor related to the adverse whether an action is likely to destroy or define ‘‘reasonable and prudent modification determination is whether, adversely modify critical habitat. Under alternatives’’ at 50 CFR 402.02 as with implementation of the proposed the statutory provisions of the Act, we alternative actions identified during Federal action, the affected critical determine destruction or adverse consultation that: habitat would continue to serve its • modification on the basis of whether, Can be implemented in a manner intended conservation role for the with implementation of the proposed consistent with the intended species, or would retain its current purpose of the action, ability for the essential features to be Federal action, the affected critical • habitat would remain functional (or Can be implemented consistent with functionally established. Activities that retain the current ability for the PCEs to the scope of the Federal agency’s may destroy or adversely modify critical legal authority and jurisdiction, habitat are those that alter the essential be functionally established) to serve its • intended conservation role for the Are economically and technologically features to an extent that appreciably species. feasible, and reduces the conservation value of • Would, in the Director’s opinion, avoid critical habitat for the Mississippi Section 7(a)(4) of the Act requires jeopardizing the continued gopher frog. Federal agencies to confer with the existence of the listed species or Section 4(b)(8) of the Act requires us Service on any action that is likely to destroying or adversely modifying to briefly evaluate and describe, in any jeopardize the continued existence of a critical habitat. proposed or final regulation that species proposed for listing or result in Reasonable and prudent alternatives designates critical habitat, activities destruction or adverse modification of can vary from slight project involving a Federal action that may proposed critical habitat. Conference modifications to extensive redesign or destroy or adversely modify such reports provide conservation relocation of the project. Costs habitat, or that may be affected by such recommendations to assist the agency in associated with implementing a designation. eliminating conflicts that may be caused reasonable and prudent alternative are Activities that, when carried out, by the proposed action. We may issue similarly variable. funded, or authorized by a Federal a formal conference report if requested Regulations at 50 CFR 402.16 require agency, may affect critical habitat and by a Federal agency. Formal conference Federal agencies to reinitiate therefore should result in consultation reports on proposed critical habitat consultation on previously reviewed for the Mississippi gopher frog include, contain an opinion that is prepared actions in instances where we have but are not limited to: according to 50 CFR 402.14, as if critical listed a new species or subsequently • Actions that would alter the hydrology habitat were designated. We may adopt designated critical habitat that may be or water quality of Mississippi the formal conference report as the affected and the Federal agency has gopher frog wetland habitats. Such biological opinion when the critical retained discretionary involvement or activities could include, but are not habitat is designated, if no substantial control over the action (or the agency’s limited to, discharge of fill material; new information or changes in the discretionary involvement or control is release of chemicals and/or action alter the content of the opinion authorized by law). Consequently, biological pollutants; clear-cutting, (see 50 CFR 402.10(d)). The Federal agencies may sometimes need to draining, ditching, grading, or conservation recommendations in a request reinitiation of consultation with bedding; diversion or alteration of conference report or opinion are strictly us on actions for which formal surface or ground water flow into or advisory. consultation has been completed, if out of a wetland (i.e., due to roads,

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fire breaks, impoundments, • A statement of goals and priorities; Under section 4(b)(2) of the Act, we discharge pipes, etc.); discharge or • A detailed description of management may exclude an area from designated dumping of toxic chemicals, silt, or actions to be implemented to critical habitat based on economic other pollutants (i.e., sewage, oil, provide for these ecological needs; impacts, impacts on national security, pesticides, and gasoline); and use of and or any other relevant impacts. In vehicles within wetlands. These • A monitoring and adaptive considering whether to exclude a activities could destroy Mississippi management plan. particular area from the designation, we gopher frog breeding sites, reduce Among other things, each INRMP must identify the benefits of including the hydrological regime necessary must, to the extent appropriate and the area in the designation, identify the for successful larval applicable, provide for fish and wildlife benefits of excluding the area from the metamorphosis, and/or eliminate or management; fish and wildlife habitat designation, and determine whether the reduce the habitat necessary for the enhancement or modification; wetland benefits of exclusion outweigh the growth and reproduction, and affect protection, enhancement, and benefits of inclusion. If, based on this the prey base, of the Mississippi restoration where necessary to support analysis, we determine that the benefits gopher frog. fish and wildlife; and enforcement of of exclusion outweigh the benefits of • Forestry management actions in pine applicable natural resource laws. inclusion, we can exclude the area only habitat that would significantly The National Defense Authorization if such exclusion would not result in the alter the suitability of Mississippi Act for Fiscal Year 2004 (Pub. L. 108- extinction of the species. gopher frog terrestrial habitat. Such 136) amended the Act to limit areas Economic Impacts activities could include, but are not eligible for designation as critical limited to, conversion of timber habitat. Specifically, section 4(a)(3)(B)(i) Under section 4(b)(2) of the Act, we land to another use; timber of the Act (16 U.S.C. 1533(a)(3)(B)(i)) consider the economic impacts of management including clear- now provides: ‘‘The Secretary shall not specifying any particular area as critical cutting, site preparation involving designate as critical habitat any lands or habitat. In order to consider economic ground disturbance, prescribed other geographical areas owned or impacts, we are preparing an analysis of burning, and unlawful pesticide controlled by the Department of the probable economic impacts of the application. These activities could Defense, or designated for its use, that proposed critical habitat designation destroy or alter the uplands are subject to an integrated natural and related factors. necessary for the growth and resources management plan prepared We will announce the availability of development of juvenile and adult under section 101 of the Sikes Act (16 the draft economic analysis as soon as Mississippi gopher frogs. U.S.C. 670a), if the Secretary determines it is completed, at which time we will • Actions that would significantly in writing that such plan provides a seek public review and comment. At fragment and isolate Mississippi benefit to the species for which critical that time, copies of the draft economic gopher frog wetland and upland habitat is proposed for designation.’’ analysis will be available for habitats from each other. Such There are no Department of Defense downloading from the Internet at the activities could include, but are not lands with a completed INRMP within Federal eRulemaking Portal: http:// limited to, constructing new the proposed critical habitat www.regulations.gov, or by contacting structures or new roads and designation. Therefore, we are not the Mississippi Fish and Wildlife Office converting forested habitat to other proposing exemption of any lands directly (see FOR FURTHER INFORMATION uses. These activities could limit or owned or managed by the Department of CONTACT section). During the prevent the dispersal of Mississippi Defense from this designation of critical development of a final designation, we gopher frogs from breeding sites to habitat for the Mississippi gopher frog. will consider economic impacts, public upland habitat or vice versa due to comments, and other new information, Exclusions obstructions to movement caused and as an outcome of our analysis of by structures, certain types of curbs, Application of Section 4(b)(2) of the Act this information, we may exclude areas from the final critical habitat increased traffic density, or Section 4(b)(2) of the Act states that inhospitable habitat. designation under section 4(b)(2) of the the Secretary must designate or make Act and our implementing regulations at Exemptions revisions to critical habitat on the basis 50 CFR 424.19. of the best available scientific data after Application of Section 4(a)(3) of the Act taking into consideration the economic National Security Impacts The Sikes Act Improvement Act of impact, national security impact, and Under section 4(b)(2) of the Act, we 1997 (Sikes Act) (16 U.S.C. 670a) any other relevant impact of specifying consider whether there are lands owned required each military installation that any particular area as critical habitat. or managed by the Department of includes land and water suitable for the The Secretary may exclude an area from Defense where a national security conservation and management of critical habitat if he determines that the impact might exist. In preparing this natural resources to complete an benefits of such exclusion outweigh the proposal, we have determined that the integrated natural resources benefits of specifying such area as part lands within the proposed designation management plan (INRMP) by of the critical habitat, unless he of critical habitat for the Mississippi November 17, 2001. An INRMP determines, based on the best scientific gopher frog are not owned or managed integrates implementation of the data available, that the failure to by the DOD, and therefore, we military mission of the installation with designate such area as critical habitat anticipate no impact to national stewardship of the natural resources will result in the extinction of the security. There are no areas proposed found on the base. Each INRMP species concerned. In making that for exclusion based on impacts to includes: determination, the legislative history is national security. • An assessment of the ecological needs clear that the Secretary has broad on the installation, including the discretion regarding which factor(s) to Other Relevant Impacts need to provide for the conservation use and how much weight to give to any Under section 4(b)(2) of the Act, we of listed species; factor. consider any other relevant impacts, in

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addition to economic impacts and will schedule public hearings on this substantial number of small business impacts on national security. We proposal, if any are requested, and entities. On the basis of the consider a number of factors, including announce the dates, times, and places of development of our proposal, we have whether the landowners have developed those hearings in the Federal Register identified certain sectors and activities any conservation plans or other and local newspapers at least 15 days that may potentially be affected by a management plans for the area, or before the first hearing. designation of critical habitat for the whether there are conservation Mississippi gopher frog. These sectors Required Determinations partnerships that would be encouraged include timber operations, industrial by designation of, or exclusion of, lands Regulatory Planning and Review— development, and urbanization, along from critical habitat. In addition, we Executive Order 12866 with the accompanying infrastructure look at any Tribal issues, and consider The Office of Management and Budget associated with such projects such as the government-to-government (OMB) has determined that this rule is road, storm water drainage, and bridge relationship of the United States with not significant and has not reviewed and culvert construction and Tribal entities. We also consider any this proposed rule under Executive maintenance. We recognize that not all social impacts that might occur because Order 12866 (E.O. 12866). OMB bases of these sectors qualify as small of the designation. its determination upon the following business entities. However, while In preparing this proposed rule, we recognizing that these sectors and have determined that there are currently four criteria: (a) Whether the rule will have an activities may be affected by this no conservation plans or other designation, we are collecting management plans for the species, and annual effect of $100 million or more on the economy or adversely affect an information and initiating our analysis the proposed designation does not to determine (1) which of these sectors include any Tribal lands or trust economic sector, productivity, jobs, the environment, or other units of the or activities are or involve small resources. We anticipate no impact to business entities and (2) what extent the Tribal lands, partnerships, or HCPs or government. (b) Whether the rule will create effects are related to the Mississippi other management plans from this gopher frog being listed as an proposed critical habitat designation. inconsistencies with other Federal agencies’ actions. endangered species under Act (baseline There are no areas proposed for effects) or whether the effects are exclusion from this proposed (c) Whether the rule will materially affect entitlements, grants, user fees, attributable to the designation of critical designation based on other relevant habitat (incremental). We believe that impacts. loan programs, or the rights and obligations of their recipients. the potential incremental effects Notwithstanding these decisions, as resulting from a designation will be stated under the Public Comments (d) Whether the rule raises novel legal or policy issues. small. As a consequence, following an section above, we request specific initial evaluation of the information comments on whether any specific areas Regulatory Flexibility Act (5 U.S.C. 601 available to us, we do not believe that proposed for designation for the et seq.) there will be a significant impact on a Mississippi gopher frog should be Under the Regulatory Flexibility Act substantial number of small business excluded under section 4(b)(2) of the (RFA; 5 U.S.C. 601 et seq., as amended entities resulting from this designation Act from the final designation. by the Small Business Regulatory of critical habitat for the Mississippi Peer Review Enforcement Fairness Act (SBREFA) of gopher frog. However, we will be conducting a thorough analysis to In accordance with our joint policy 1996), whenever an agency must determine if this may in fact be the case. published in the Federal Register on publish a notice of rulemaking for any As such, we are requesting any specific July 1, 1994 (59 FR 34270), we will seek proposed or final rule, it must prepare economic information related to small the expert opinions of at least three and make available for public comment business entities that may be affected by appropriate and independent specialists a regulatory flexibility analysis that this designation and how the regarding this proposed rule. The describes the effects of the rule on small designation may impact their business. purpose of such review is to ensure that entities (small businesses, small Therefore, we defer our RFA finding on our proposed actions are based on organizations, and small government this proposed designation until scientifically sound data, assumptions, jurisdictions). However, no regulatory completion of the draft economic and analyses. We will invite these peer flexibility analysis is required if the analysis prepared under section 4(b)(2) reviewers to comment, during the head of the agency certifies the rule will of the Act and E.O. 12866. public comment period, on the specific not have a significant economic impact assumptions and conclusions regarding on a substantial number of small As discussed above, this draft the proposed designation of critical entities. The SBREFA amended RFA to economic analysis will provide the habitat. require Federal agencies to provide a required factual basis for the RFA We will consider all comments and statement of the factual basis for finding. Upon completion of the draft information received during the certifying that the rule will not have a economic analysis, we will announce comment period on this proposed rule significant economic impact on a availability of the draft economic during preparation of a final substantial number of small entities. analysis of the proposed designation in rulemaking. Accordingly, the final At this time, we lack the specific the Federal Register and reopen the decision may differ from this proposal. information necessary to provide an public comment period for the proposed adequate factual basis for determining designation. We will include with this Public Hearings the potential incremental regulatory announcement, as appropriate, an initial The Act provides for one or more effects of the designation of critical regulatory flexibility analysis or a public hearings on this proposal, if habitat for the Mississippi gopher frog to certification that the rule will not have requested. Requests for public hearings either develop the required RFA finding a significant economic impact on a must be made in writing within 45 days or provide the necessary certification substantial number of small entities of the publication of this proposal (see statement that the designation will not accompanied by the factual basis for DATES and ADDRESSES sections). We have a significant impact on a that determination. We have concluded

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that deferring the RFA finding until jeopardize the continued existence of features themselves are specifically completion of the draft economic the species, or destroy or adversely identified. While making this definition analysis is necessary to meet the modify critical habitat under section 7. and identification does not alter where purposes and requirements of the RFA. While non-Federal entities that receive and what federally sponsored activities Deferring the RFA finding in this Federal funding, assistance, or permits, may occur, it may assist local manner will ensure that we make a or that otherwise require approval or governments in long-range planning sufficiently informed determination authorization from a Federal agency for (rather than having them wait for case- based on adequate economic an action, may be indirectly impacted by-case section 7 consultations to information and provide the necessary by the designation of critical habitat, the occur). opportunity for public comment. legally binding duty to avoid Where state and local governments destruction or adverse modification of require approval or authorization from a Unfunded Mandates Reform Act (2 critical habitat rests squarely on the Federal agency for actions that may U.S.C. 1501 et seq.) Federal agency. Furthermore, to the affect critical habitat, consultation In accordance with the Unfunded extent that non-Federal entities are under section 7(a)(2) would be required. Mandates Reform Act (2 U.S.C. 1501 et indirectly impacted because they While non-Federal entities that receive seq.), we make the following findings: receive Federal assistance or participate Federal funding, assistance, or permits, (a) This rule would not produce a in a voluntary Federal aid program, the or that otherwise require approval or Federal mandate. In general, a Federal Unfunded Mandates Reform Act would authorization from a Federal agency for mandate is a provision in legislation, not apply; nor would critical habitat an action, may be indirectly impacted statute, or regulation that would impose shift the costs of the large entitlement by the designation of critical habitat, the an enforceable duty upon State, local, or programs listed above onto State legally binding duty to avoid Tribal governments, or the private sector governments. destruction or adverse modification of and includes both ‘‘Federal (b) We do not believe that this rule critical habitat rests squarely on the intergovernmental mandates’’ and would significantly or uniquely affect Federal agency. ‘‘Federal private sector mandates.’’ small governments because the These terms are defined in 2 U.S.C. Mississippi gopher frog occurs primarily Civil Justice Reform—Executive Order 658(5)-(7). ‘‘Federal intergovernmental on Federal and privately owned lands. 12988 mandate’’ includes a regulation that None of these government entities fit the In accordance with E.O. 12988 (Civil ‘‘would impose an enforceable duty definition of ‘‘small governmental Justice Reform), the Office of the upon State, local, or Tribal jurisdiction.’’ Therefore, a Small Solicitor has determined that the rule governments,’’ with two exceptions. It Government Agency Plan is not does not unduly burden the judicial excludes ‘‘a condition of Federal required. However, we will further system and that it meets the assistance.’’ It also excludes ‘‘a duty evaluate this issue as we conduct our requirements of sections 3(a) and 3(b)(2) arising from participation in a voluntary economic analysis, and review and of the Order. We have proposed Federal program,’’ unless the regulation revise this assessment as warranted. designating critical habitat in ‘‘relates to a then-existing Federal accordance with the provisions of the Takings—Executive Order 12630 program under which $500,000,000 or Act. This proposed rule uses standard more is provided annually to State, In accordance with E.O. 12630 property descriptions and identifies the local, and Tribal governments under (Government Actions and Interference physical and biological features entitlement authority,’’ if the provision with Constitutionally Protected Private essential to the conservation of the would ‘‘increase the stringency of Property Rights), we have analyzed the species within the designated areas to conditions of assistance’’ or ‘‘place caps potential takings implications of assist the public in understanding the upon, or otherwise decrease, the Federal designating critical habitat for the habitat needs of the Mississippi gopher Government’s responsibility to provide Mississippi gopher frog in a takings frog. funding,’’ and the State, local, or Tribal implications assessment. The takings governments ‘‘lack authority’’ to adjust implications assessment concludes that Paperwork Reduction Act of 1995 accordingly. At the time of enactment, this designation of critical habitat for This rule does not contain any new these entitlement programs were: the Mississippi gopher frog does not collections of information that require Medicaid; Aid for Families with pose significant takings implications for approval by OMB under the Paperwork Dependent Children work programs; lands within or affected by the proposed Reduction Act of 1995 (44 U.S.C. 3501 Child Nutrition; Food Stamps; Social designation. et seq.). This rule will not impose Services Block Grants; Vocational recordkeeping or reporting requirements Federalism—Executive Order 13132 Rehabilitation State Grants; Foster Care, on State or local governments, Adoption Assistance, and Independent In accordance with E. O. 13132 individuals, businesses, or Living; Family Support Welfare (Federalism), this rule does not have organizations. An agency may not Services; and Child Support significant Federalism effects. A conduct or sponsor, and a person is not Enforcement. ‘‘Federal private sector Federalism assessment is not required. required to respond to, a collection of mandate’’ includes a regulation that In keeping with Department of the information unless it displays a ‘‘would impose an enforceable duty Interior and Department of Commerce currently valid OMB control number. upon the private sector, except (i) a policy, we requested information from, condition of Federal assistance or (ii) a and coordinated development of this National Environmental Policy Act duty arising from participation in a proposed critical habitat designation (NEPA) voluntary Federal program.’’ with appropriate State resource agencies It is our position that, outside the The designation of critical habitat in Mississippi. The critical habitat jurisdiction of the U.S. Court of Appeals does not impose a legally binding duty designation may have some benefit to for the Tenth Circuit, we do not need to on non-Federal government entities or this government in that the areas that prepare environmental analyses as private parties. Under the Act, the only contain the features essential to the defined by NEPA (42 U.S.C. 4321 et regulatory effect is that Federal agencies conservation of the species are more seq.) in connection with designating must ensure that their actions do not clearly defined, and the essential critical habitat under the Act. We

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published a notice outlining our reasons communicate meaningfully with economic analysis, and review and for this determination in the Federal recognized Federal Tribes on a revise this assessment as warranted. Register on October 25, 1983 (48 FR government-to-government basis. In References Cited 49244). This position was upheld by the accordance with Secretarial Order 3206 U.S. Court of Appeals for the Ninth of June 5, 1997 ‘‘American Indian Tribal A complete list of all references cited Circuit (Douglas County v. Babbitt, 48 Rights, Federal-Tribal Trust in this rulemaking is available on the F.3d 1495 (9th Cir. 1995), cert. denied Responsibilities, and the Endangered Internet at http:// 516 U.S. 1042 (1996)). Species Act,’’ we readily acknowledge www.regulations.govand upon request our responsibilities to work directly from the Field Supervisor, Mississippi Clarity of the Rule with Tribes in developing programs for Fish and Wildlife Office (see FOR We are required by Executive Orders healthy ecosystems, to acknowledge that FURTHER INFORMATION CONTACT). 12866 and 12988 and by the Tribal lands are not subject to the same Author(s) Presidential Memorandum of June 1, controls as Federal public lands, to 1998, to write all rules in plain remain sensitive to Indian culture, and The primary authors of this package language. This means that each rule we to make information available to Tribes. are staff members of the Mississippi publish must: We have determined that there are no Fish and Wildlife Office. (a) Be logically organized; Tribal lands occupied at the time of (b) Use the active voice to address List of Subjects in 50 CFR Part 17 listing that contain the features essential readers directly; Endangered and threatened species, (c) Use clear language rather than for the conservation, and no Tribal lands that are essential for the Exports, Imports, Reporting and jargon; recordkeeping requirements, (d) Be divided into short sections and conservation of the Mississippi gopher Transportation. sentences; and frog. Therefore, we have not proposed designation of critical habitat for the (e) Use lists and tables wherever Proposed Regulation Promulgation possible. Mississippi gopher frog on Tribal lands. If you feel that we have not met these Energy Supply, Distribution, or Use Accordingly, we propose to amend requirements, send us comments by one part 17, subchapter B of chapter I, title of the methods listed in the ADDRESSES On May 18, 2001, the President issued 50 of the Code of Federal Regulations, section. To better help us revise the an Executive Order (E.O. 13211; Actions as set forth below: rule, your comments should be as Concerning Regulations That specific as possible. For example, you Significantly Affect Energy Supply, PART 17—[AMENDED] should tell us the numbers of the Distribution, or Use) on regulations that 1. The authority citation for part 17 sections or paragraphs that are unclearly significantly affect energy supply, continues to read as follows: written, which sections or sentences are distribution, and use. E.O. 13211 too long, the sections where you feel requires agencies to prepare Statements Authority: 16 U.S.C. 1361-1407; 16 U.S.C. lists or tables would be useful, etc. of Energy Effects when undertaking 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99- certain actions. Based on an analysis of 625, 100 Stat. 3500; unless otherwise noted. Government-to-Government areas included in this proposal, we Relationship with Tribes 2. In § 17.11(h), revise the entry for determined that this proposed rule to ‘‘Frog, Mississippi gopher’’ under In accordance with the President’s designate critical habitat for the AMPHIBIANS in the List of Endangered memorandum of April 29, 1994, Mississippi gopher frog is not expected and Threatened Wildlife to read as ‘‘Government-to-Government Relations to significantly affect energy supplies, follows: with Native American Tribal distribution, or use. Therefore, this Governments’’ (59 FR 22951), E. O. action is not a significant energy action, § 17.11 Endangered and threatened 13175, and the Department of Interior’s and no Statement of Energy Effects is wildlife. manual at 512 DM 2, we readily required. However, we will further * * * * * acknowledge our responsibility to evaluate this issue as we conduct our (h) * * *

Species Vertebrate population Historic range where Status When listed Critical habitat Special rules Common name Scientific name endangered or threatened

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AMPHIBIANS

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Frog, Rana sevosa U.S.A. Whereever E 718 17.95(d) NA Mississippi (AL,LA,MS) found west of gopher Mobile and Tombigbee Rivers in AL, MS, and LA

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3. In § 17.95(d), add an entry for to allow for successful reproduction of for food, shelter, and protection from ‘‘Mississippi gopher frog’’ (Rana sevosa) Mississippi gopher frogs are: the elements and predation. in the same alphabetical order as the (A) An open canopy with emergent (iii) Accessible upland connectivity species appears in § 17.11(h), to read as herbaceous vegetation for egg habitat between breeding and follows: attachment; nonbreeding habitats to allow for (B) An absence of large, predatory fish Mississippi gopher frog movements § 17.95 Critical habitat—fish and wildlife. that prey on frog larvae; between and among such sites and that * * * * * (C) Water quality such that frogs, their is characterized by an open canopy and (d) Amphibians. eggs, or larvae are not exposed to abundant native herbaceous species and * * * * * pesticides or chemicals and sediment subsurface structure which provides associated with road runoff; and shelter for Mississippi gopher frogs Mississippi gopher frog (Rana sevosa) (D) Surface water that lasts for a during seasonal movements, such as (1) Critical habitat units are depicted minimum of 195 days during the that created by deep litter cover, clumps for Forrest, Harrison, Jackson, and Perry breeding season to allow a sufficient of grass, or burrows. Counties in Mississippi, on the maps period for larvae to hatch, mature, and (3) Critical habitat does not include below. metamorphose. manmade structures (such as buildings, (2) The primary constituent elements (ii) Upland forested nonbreeding bridges, aqueducts, airports, and roads) of critical habitat for the Mississippi habitat historically dominated by and the land on which they are located gopher frog are: longleaf pine, adjacent and accessible to existing within the legal boundaries on (i) Breeding ponds, geographically and from breeding ponds, that is the effective date of this rule. isolated from other waterbodies and maintained by fires frequent enough to (4) Critical habitat unit maps. Maps embedded in forests historically support an open canopy and abundant were developed from USGS 7.5’ dominated by longleaf pine herbaceous ground cover and gopher quadrangles, and critical habitat units communities, that are small (generally tortoise burrows, small mammal were then mapped using Universal <0.4 to 4.0 hectares (ha) (<1 to 10 acres burrows, stump holes, or other Transverse Mercator (UTM) coordinates. (ac)), ephemeral, and acidic. Specific underground habitat that the (5) Note: Index Map (Map 1) follows: conditions necessary in breeding ponds Mississippi gopher frog depends upon BILLING CODE 4310–55–S

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(6) Unit 1: Harrison County, [Reserved for textual description of Unit (i) Unit 2 from USGS 1:24,000 scale Mississippi. 1.] quadrangle map, White Plains, Mississippi. (i) Unit 1 from USGS 1:24,000 scale (ii) Note: Map of Unit 1 is provided quadrangle map, Success, Mississippi. at paragraph (7)(ii) of this entry. [Reserved for textual description of Unit 2.] (7) Unit 2: Harrison County, Mississippi. (ii) Note: Map of Units 1 and 2 follows:

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(8) Unit 3: Jackson County, [Reserved for textual description of Unit [Reserved for textual description of Unit Mississippi. 3.] 4.] (i) Unit 3 from USGS 1:24,000 scale (ii) Note: Map depicting Unit 3 is (ii) Note: Map depicting Unit 4 is quadrangle map Gautier North, provided at paragraph (10)(ii) of this provided at paragraph (10)(ii) of this Mississippi. entry. entry. (9) Unit 4: Jackson County, (10) Unit 5: Jackson County, Mississippi. Mississippi. (i) Unit 4 from USGS 1:24,000 scale (i) Unit 5 from USGS 1:24,000 scale quadrangle map Latimer, Mississippi. quadrangle map Vancleave, Mississippi.

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[Reserved for textual description of Unit 5.] (ii) Note: Map of Units 3, 4, and 5 follows:

(11) Unit 6: Jackson County, (i) Unit 6 from USGS 1:24,000 scale [Reserved for textual description of Unit Mississippi. quadrangle map Big Point, Mississippi. 6.] (ii) Note: Map of Unit 6 follows:

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(12) Unit 7: Forrest County, [Reserved for textual description of Unit (i) Unit 8 from USGS 1:24,000 scale Mississippi. 7.] quandrangle map Brooklyn, Mississippi. (i) Unit 7 from USGS 1:24,000 scale (ii) Note: Map depicting Unit 7 is [Reserved for textual description of Unit quadrangle map Brooklyn, Mississippi. provided at paragraph (13)(ii) of this 8.] entry. (13) Unit 8: Jackson County, (ii) Note: Map of Units 7 and 8 Mississippi. follows:

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(14) Unit 9: Perry County, Mississippi. [Reserved for textual description of Unit (i) Map unit 10 from USGS 1:24,000 (i) Map unit 9 from USGS 1:24,000 9.] scale quadrangle map Barbara, Mississippi. scale quadrangle map Barbara, (ii) Note: Map depicting Unit 9 is Mississippi. provided at paragraph (16)(ii) of this [Reserved for textual description of Unit entry. 10.] (15) Unit 10: Perry County, (ii) Note: Map depicting Unit 10 is Mississippi. provided at paragraph (16)(ii) of this entry.

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(16) Unit 11: Perry County, (i) Map unit 11 from USGS 1:24,000 [Reserved for textual description of Unit Mississippi. scale quadrangle map Barbara, 11.] Mississippi. (ii) Note: Map of Units 9, 10, and 11 follows:

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* * * * * 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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