2001 Federal Register, 66 FR 62993; Centralized Library: U.S. Fish & Wildlife Service

[Federal Register: December 4, 2001 (Volume 66, Number 233)]
[Rules and Regulations]
[Page 62993-63002]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04de01-24]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF90

Endangered and Threatened Wildlife and Plants; Final Rule To List
the Mississippi Gopher Frog Distinct Population Segment of Dusky Gopher
Frog as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service, determine the Mississippi
gopher frog (Rana capito sevosa) distinct population segment of the
gopher frog (Rana capito) as an endangered species under the authority
of the Endangered Species Act of 1973, as amended (Act). Historically,
the Mississippi gopher frog distinct population segment is believed to
have occurred in at least nine counties or parishes across Louisiana,
Mississippi, and Alabama, ranging from east of the Mississippi River in
Louisiana to the Mobile River delta in Alabama. Today, it is known from
only one site in Harrison County, Mississippi. The greatest threat to
this last surviving population is the low number of adult frogs in the
population and their vulnerability to environmental stressors, both
natural and human-induced. Human-induced threats are a result of
habitat destruction and degradation in the area adjacent to the frog's
only known breeding site. Habitat changes are occurring due to
construction associated with a proposed housing development and the
construction and expansion of two highways. This action extends the
Act's protection to the Mississippi gopher frog distinct population
segment.

DATES: This rule is effective January 3, 2002.

ADDRESSES: The complete file for this rule is available for inspection
by appointment during normal business hours at the Mississippi Field
Office, U.S. Fish and Wildlife Service, 6578 Dogwood View Parkway,
Jackson, Mississippi 39213.

FOR FURTHER INFORMATION CONTACT: Ms. Linda LaClaire at the above
address, telephone 601/321-1126, or facsimile 601/965-4340.

SUPPLEMENTARY INFORMATION:

Background

The gopher frog (Rana capito) is a member of the large cosmopolitan
family, Ranidae (``true frogs''). The genus Rana is the only North
American representative of this family. We define the Mississippi
gopher frog distinct population segment as those populations of gopher
frogs in the lower coastal plain ranging from the Mississippi River in
Louisiana to the Mobile River delta of Alabama. Goin and Netting (1940)
originally described frogs from this geographic range as a distinct
species of gopher frog, Rana sevosa. The taxonomic history of gopher
frogs is complex (summary in Altig and Lohoefener 1983). Subsequent to
the original description by Goin and Netting, frogs of this population
segment were considered subspecies of Rana capito (gopher frog) (R. c.
sevosa, common name dusky gopher frog) (Wright and Wright 1942) and
later subspecies of R. areolata (crayfish frog) (R. a. sevosa) (Viosca
1949, Neill 1957). In 1991, Collins challenged the taxonomic
arrangement that lumped crayfish frogs and gopher frogs together as one
species and recommended their separation based on biogeographical
grounds. This arrangement was followed by Conant and Collins (1991),
who again recognized the name R. c. sevosa.
Young and Crother (2001) conducted the first comprehensive
biochemical analysis of the relationships between gopher frogs and
crayfish frogs and among subspecies of gopher frogs. They used allozyme
electrophoresis (an assay (examination) of gene products) to examine
allelic (genetic) differences between and among populations. Allozyme
data have been used extensively to investigate the evolution of genetic
relationships among related species. Young and Crother (2001) analyzed
tissue from gopher frogs across the range of the species including
populations in Mississippi, Alabama, Georgia, Florida, and North
Carolina, and from crayfish frogs from Arkansas, Kansas, and Missouri.
They found strong support for the species designations R. areolata
(crayfish frogs) and R. capito (gopher frogs). In addition, they found
that the population of gopher frogs from Harrison County, Mississippi,
showed a fixed difference at a single locus (site for a specific gene
on a chromosome) from all other gopher frogs east of the Mobile River
drainage in Alabama. This difference is considered by many taxonomists
that support the phylogenetic (evolutionary) species concept to be
significant enough to warrant elevation of the frog to its own species
(Young and Crother 2001). No other specific taxonomic divisions were
determined among the remaining populations of gopher frogs sampled.
Since Harrison County is within the range of the original specimens
used to describe R. sevosa, Young and Crother recommended the
resurrection of R. sevosa as a distinct species.
Young and Crother's recommendation and their supporting data were
published relatively recently (May 2001). Given the varied and
confusing history surrounding sevosa, it is unclear if the suggested
taxonomy will be accepted by the herpetological scientific community.
Young and Crother (2001) alluded to potential debates about this
designation in their paper when they stated: ``It might be suggested
that we have comfortably separated R. areolata from R. capito with
three mutually exclusive differences but have not demonstrated the same
for R. capito and R. sevosa with one fixed difference.'' In any case,
our analysis of the five listing factors would be the same whether the
Mississippi gopher frog is considered a distinct population segment or
a unique species. We will continue to use the common name ``Mississippi
gopher frog'' to avoid confusion with other populations of gopher frogs
further east. The Mississippi gopher frog distinct population segment
will be defined as all gopher frogs west of Mobile Bay, following the
range description of Goin and Netting (1940). The scientific name, Rana
capito sevosa, will be used to represent this distribution of frogs. If
the name Rana sevosa is ultimately accepted by the herpetological
scientific community, we will revise our List of Endangered and
Threatened Wildlife and Plants to reflect this change in nomenclature
(scientific name).
The Mississippi gopher frog has a stubby appearance due to its
short, plump body, comparatively large head, and relatively short legs
(Conant and Collins 1991). The coloration of its back is dark and
varies in individual frogs. It ranges from an almost uniform black to a
pattern of reddish brown or dark brown spots on a ground color of gray
or brown (Goin and Netting 1940). Warts densely cover the back. The
belly is thickly covered with dark spots and dusky markings from chin
to mid-body (Goin and Netting 1940, Conant and Collins 1991). Males are
distinguished

[[Page 62994]]

from females by their smaller size, enlarged thumbs, and paired vocal
sacs on either side of the throat (Godley 1992). Richter (1998)
reported mean snout-vent lengths from three years of data. They ranged
from 63.2 to 70.2 millimeters (mm) (2.5 to 2.8 inches (in)) for males
and 78.0 to 82.7 mm (3.1 to 3.3 in) for females in the extant
population. Mississippi gopher frog tadpoles are presently
indistinguishable in the field from those of leopard frogs and other
gopher frogs (Altig et al. 2001).
Mississippi gopher frog habitat includes both upland sandy habitats
historically forested with longleaf pine and isolated temporary wetland
breeding sites embedded within the forested landscape. Frequent fires
are necessary to maintain the open canopy and ground cover vegetation
of their aquatic and terrestrial habitat.
Adult and subadult Mississippi gopher frogs spend the majority of
their lives underground. They use active and abandoned gopher tortoise
(Gopherus polyphemus) burrows, abandoned mammal burrows, and holes in
and under old stumps as refugia (Allen 1932; LaClaire, pers. obs. 1996;
Richter et al. 2001). Gopher tortoise burrows likely represented
preferred underground habitats. In Florida, Godley (1992) reported that
the closely related Florida gopher frog was known only from sites that
supported gopher tortoises. The remaining Mississippi gopher frog
population occurs in an area presently lacking gopher tortoises, most
likely as a result of habitat degradation. An abandoned tortoise burrow
occurs approximately 0.8 kilometers (km) (0.5 miles (mi)) from the
breeding pond, and an active burrow was found within 1.6 km (1 mi) of
the site in 1992 (T. Mann, Mississippi Department of Wildlife,
Fisheries and Parks, pers. comm. 1999).
The Mississippi gopher frog breeding site is an isolated pond (not
connected to any other water body) that dries completely on a cyclic
basis. Faulkner (unpub. data 2000) recently conducted hydrologic
research at the site. He described the pond as a depressional feature
on a topographic high. The dominant source of water to the pond is
rainfall within a small, localized watershed that extends 61 to 122
meters (m) (200 to 400 feet (ft)) from the pond's center. Substantial
winter rains are needed to ensure that the pond fills sufficiently to
allow hatching, development, and metamorphosis (change to adults) of
larvae. The timing and frequency of rainfall are critical to the
successful reproduction and recruitment of Mississippi gopher frogs.
The single remaining breeding pond known for the Mississippi gopher
frog is located in Harrison County, Mississippi. Adult frogs move to
this wetland breeding site during heavy rain events, usually from
January to late March (Richter and Seigel 1998b). The breeding pond is
approximately 1.5 hectares (3.8 acres) when filled. It attains a
maximum depth of 1.1 m (3.6 ft). The pond is hard-bottomed, has an open
canopy, and contains emergent and submergent vegetation. Female
Mississippi gopher frogs attach their eggs to the rigid vertical stems
of emergent vegetation (Young 1997, Richter and Seigel 1998a, 1998b).
The pond typically dries in early to mid-summer, but on occasion has
remained wet until early fall (G. Johnson, U.S. Forest Service, pers.
comm. 1993; Young 1997; Richter and Seigel 1998b). As many as 21
amphibian species (17 frogs and 4 salamanders) are known to utilize the
site (R. Seigel, unpub. data 2001). Bailey (1990), Palis (1998), and
Greenberg (2001) found similar habitat attributes in breeding ponds of
the closely related gopher frogs in Alabama and Florida.
Adult Mississippi gopher frogs leave the pond site after breeding
during major rainfall events. Adults of both sexes use specific
migratory corridors when exiting the breeding pond (Richter and Seigel
1998b). Movements away from the pond are slightly east of due north.
Richter et al. (2001) tracked a total of 13 frogs using radio
transmitters. The farthest movement recorded was 268 m (879 ft) by a
frog tracked for 88 days from its exit of the breeding site. In
Florida, gopher frogs have been found 2 km (1.2 mi) from their breeding
sites (Carr 1940, Franz et al. 1988). It is unclear if the distances
recorded for the Mississippi gopher frogs were typical as the tracking
periods represented only a fraction of their yearly life cycle.
Movements corresponded with major rain events. However, dry conditions
prevailed during most of the two study periods. In fact, the frogs in
Richter and Seigel's study moved during only one 24-hour period, which
was associated with a rain event.
Amphibians need to maintain moist skin for respiration (breathing)
and osmoregulation (controlling the amounts of water and salts in their
bodies) (Duellman and Trueb 1986). Since they disperse from their
aquatic breeding sites to the uplands where they live as adults,
desiccation (drying out) can be a limiting factor in their movements.
Thus, it is important that areas connecting their wetland and
terrestrial habitats are protected in order to provide cover and
appropriate moisture regimes during their migration. This may be
especially important for juveniles as they move out of the breeding
pond for the first time (A. Braswell, North Carolina State Museum of
Natural Sciences, pers. comm. 2000).
It is likely that, given appropriate habitat, Mississippi gopher
frogs are long-lived. The longevity record for a captive close
relative, the Carolina gopher frog (R. capito capito), is 9 years, 1
month (Snider and Bowler 1992). However, overall low rates of recapture
at the extant breeding pond suggest low adult survival in the
Mississippi gopher frog population (Richter 1998).
Historical records for the Mississippi gopher frog exist for two or
possibly three parishes in Louisiana, six counties in Mississippi, and
one county in Alabama. Researchers conducting numerous surveys have
been unable to document the continuing existence of the Mississippi
gopher frog in Louisiana (Seigel and Doody 1992, Thomas 1996) or in
Alabama (Bailey 1992, 1994). The last observation of a gopher frog in
Louisiana was in 1967 (G. Lester, Louisiana Natural Heritage Program,
pers. comm. 1991). In Alabama, it was last seen in 1922 (Bailey 1994).
Historical records for the Mississippi gopher frog are limited. We
have compiled 35 historical records--1 in Alabama, 14 in Louisiana, and
20 in Mississippi. Historical records are defined as those localities
where gopher frogs were found prior to 1990. No new localities for the
frog have been found since 1988. Localities are sites identified from
specimens captured or heard calling during sampling of potential
breeding sites or by surveying highway crossings when individuals were
on their way to or from breeding sites. Of the 35 historical records,
24 provided data that were used to approximate the location of the
original site.
Habitat degradation is the primary factor in the loss of gopher
frog populations in Alabama, Louisiana, and Mississippi. Bailey (1994)
visited the historical Alabama locality in 1993. The habitat had been
developed as a residential area, and was no longer suitable for the
gopher frog. Seigel and Doody (1992) and Thomas (1996) surveyed
historical sites in Louisiana and searched for other potential sites
that might be occupied by gopher frogs. They also found that longleaf
pine forests in Louisiana had been severely degraded. The historical
breeding and upland habitats had changed as a result of urbanization
and conversion of forest to pine plantation. For example, they found
three historical breeding sites that had been extensively altered. One
had been converted into a permanent pond

[[Page 62995]]

in a residential backyard. Two other ponds had been extensively altered
by bedding, clearing, and nutrient loading during conversion of the
surrounding habitat to pine plantation. Both survey efforts by Seigel
and Doody (1992) and Thomas (1996) were unsuccessful to find any
Mississippi gopher frogs in Louisiana.
Crawford (1988) surveyed 42 ponds in 6 Mississippi counties in 1987
and 1988. He attempted to relocate all of the State's historical
localities for the gopher frog. He found that habitat in the vicinity
of historical localities had been altered by conversion of natural
forest to agriculture and pine plantations. Urbanization was a factor
in the loss of at least three breeding ponds. The character of
relocated historical breeding ponds had been changed from open-canopy,
temporary ponds with clear water and hard bottoms to muddy, more
permanent ponds with a closed canopy (G. Johnson, pers. comm. 1999). No
appropriate habitat for the Mississippi gopher frog could be found near
any of the localities (G. Johnson, pers. comm. 1999). Crawford (1988)
also used aerial maps to identify potential breeding sites. In many
cases, ponds identified on these maps no longer existed due to land use
changes. However, he was able to verify the presence of the species at
four new sites in Harrison County, Mississippi. At three of these four
sites, only one individual was observed. Kuss (1988) surveyed 60 ponds
in southern Mississippi for the flatwoods salamander (Ambystoma
cingulatum). He did not encounter any gopher frogs during the surveys.
Subsequent to these studies, surveys have documented the continued
existence of only one population in Mississippi. This population breeds
at a pond located in the DeSoto National Forest in Harrison County.
Surveyors working in Mississippi during the 1990s have been unable to
find the species at any other sites (R. Jones, Mississippi Department
of Wildlife, Fisheries and Parks, pers. comm. 1998; G. Johnson, pers.
comm. 1999). Although Allen (1932) found gopher frogs to be common in
the coastal counties of Mississippi earlier in the century, today R.
Seigel (Southeastern Louisiana University, pers. comm. 2001) estimates
the extant Mississippi gopher frog population to be only 100 adult
frogs at a single site.
The extensive habitat alteration found during surveys of historical
gopher frog localities in Alabama, Louisiana, and Mississippi resulted
from the loss of virtually all of the natural longleaf pine forest in
these States. Presettlement longleaf pine forests were the dominant
forest type of the southeastern coastal plain. Today, less than 2
percent of these forests remain (Ware et al. 1993). Second growth
longleaf pine forests in the vicinity of historical Mississippi gopher
frog breeding sites were clearcut extensively in the mid-1950s and then
again in the 1980s and 1990s. Longleaf pine forest habitat was replaced
with dense pine plantations, agriculture, and urban areas. Habitat
degradation has occurred as a result of alterations in the soil horizon
(layering of different soil types), forest litter, herbaceous
community, and occurrence of downed trees and stumps that Mississippi
gopher frogs use as refugia. Fire suppression has further degraded the
habitat. The hydrology of many isolated temporary wetlands, required as
breeding sites for the Mississippi gopher frog, has been altered. In
addition, these same factors have resulted in the decline of the gopher
tortoise, whose burrows are most likely the preferred habitat for adult
gopher frogs. As a result of these habitat changes, both the uplands
and the pond basins previously occupied by the Mississippi gopher frog
have become unsuitable.

Distinct Vertebrate Population Segment

The biological evidence supports recognition of the Mississippi
gopher frog as a distinct vertebrate population segment for purposes of
listing, as defined in our February 7, 1996, Policy Regarding the
Recognition of Distinct Vertebrate Population Segments (61 FR 4722).
The definition of ``species'' in section 3(16) of the Act includes
``any distinct population segment of any species of vertebrate fish or
wildlife which interbreeds when mature.'' For a population to be listed
under the Act as a distinct vertebrate population segment, three
elements are considered--(1) The discreteness of the population segment
in relation to the remainder of the species to which it belongs; (2)
the significance of the population segment to the species to which it
belongs; and (3) the population segment's conservation status in
relation to the Act's standards for listing (i.e., is the population
segment endangered or threatened?).
Habitat of the lower Gulf Coastal Plain from the Mississippi River
to the Mobile River delta contains the westernmost population of gopher
frogs. This population segment is discrete because it is geographically
segregated from other gopher frogs by a large gap (approximately 200 km
(125 mi)) of unoccupied habitat and the Mobile River delta.
Consequently, this population does not mix with other gopher frogs.
Young and Crother (2001) presented data that the Mississippi gopher
frog distinct population segment is biologically and ecologically
significant due to genetic characteristics different from the species
as a whole (see discussion in ``Background'' section). They analyzed
tissue from gopher frogs across the range of the species, including
populations in Mississippi, Alabama, Georgia, Florida, and North
Carolina, and found that the population of gopher frogs from Harrison
County, Mississippi, showed a fixed difference at a single locus (site
for a specific gene on a chromosome) from all other gopher frogs east
of the Mobile River drainage in Alabama. This difference is considered
by many taxonomists to be significant enough to warrant elevation of
the frog to its own species (Young and Crother 2001).

Previous Federal Action

In our December 30, 1982, Notice of Review, we designated the dusky
gopher frog (designation Rana areolata sevosa) as a category 2
candidate and solicited status information (47 FR 58454). Category 2
candidates were those taxa for which we had information indicating that
proposing to list as endangered or threatened was possibly appropriate,
but for which sufficient data on biological vulnerability and threats
were not currently available to support a proposed rule. In our
September 18, 1985 (50 FR 37958), and January 6, 1989 (54 FR 554),
Notices of Review, we retained the dusky gopher frog in category 2. We
identified the dusky gopher frog as a category 1 candidate species in
our November 21, 1991 (56 FR 58804), and November 15, 1994 (59 FR
58982), Notices of Review. Category 1 taxa were those taxa for which we
had sufficient information on biological vulnerability and threats on
file to support issuance of proposed listing rules. Beginning with our
February 28, 1996, Notice of Review (61 FR 7596), we discontinued the
designation of multiple categories of candidates, and we now consider
only taxa that meet the definition of former category 1 taxa as
candidates for listing. At that time, we removed Rana areolata sevosa
from candidate status based on the need for additional information to
support a listing proposal. We then completed an analysis of newly
available information from recent studies and determined that listing
the Mississippi gopher frog distinct population segment was warranted.
We elevated the Mississippi gopher frog to candidate status in our
October 25, 1999, Notice of Review (64 FR 57534).

[[Page 62996]]

We published the proposed rule to list the Mississippi gopher frog
in the Federal Register on May 23, 2000 (65 FR 33283). This final rule
is made in accordance with a judicially approved settlement agreement,
which requires us to submit a final listing decision to the Federal
Register by November 28, 2001.
We have been coordinating with our partners, the U.S. Forest
Service, Mississippi Department of Wildlife, Fisheries and Parks, and
Dr. Rich Seigel of Southeastern Louisiana University, on Mississippi
gopher frog surveys and monitoring for the past 10 years. During the
past 2 years, we and our partners have increased conservation efforts
at the remaining breeding pond and adjacent areas on the DeSoto
National Forest. These efforts have included attempting to alter two
existing ponds to create potential breeding sites for the Mississippi
gopher frog; developing a strategy to construct new breeding ponds; and
responding to the ongoing drought by transporting water overland to the
known breeding pond (with the assistance of the Mississippi National
Guard) and digging two wells adjacent to the pond. A Memorandum of
Understanding has been drafted between the partners for conservation of
this species and is currently under review by the parties.

Summary of Comments and Recommendations

In the May 23, 2000, proposed rule and associated notifications, we
requested that all interested parties submit factual reports or
information that might contribute to the development of this final
rule. The comment period for the proposed rule was open from May 23
through July 24, 2000. We contacted appropriate Federal and State
agencies, county governments, scientific organizations, and other
interested parties and requested that they comment. We published a
legal notice in the Clarion Ledger on June 2, 2000, and another in the
Sun Herald on June 3, 2000, announcing the proposal and inviting
comment. We received 18 comment letters. Twelve of these supported, 3
opposed, and 3 were neutral on the proposed listing action. The
breakdown of the comments included 2 from Federal agencies, 2 from
State agencies, and 14 from individuals or groups. The Mississippi
Department of Wildlife, Fisheries and Parks and the Louisiana
Department of Wildlife and Fisheries supported the protection of the
Mississippi gopher frog distinct population segment under the Act. One
request was made for a public hearing, however the request was later
withdrawn.
We updated the final rule to reflect comments and information we
received during the comment period. We address opposing comments and
other substantive comments concerning the rule below. Comments of a
similar nature or point are grouped together (referred to as ``Issues''
for the purpose of this summary) below, along with our response to
each.
Issue 1: The proposed listing rule was not based on the best
scientific and commercial data available, as required by section
4(b)(1) of the Act. The Service used too many documents that were not
published papers in peer-reviewed journals in writing the rule.
Response: We thoroughly reviewed all available scientific and
commercial data in preparing the proposed rule. We sought and reviewed
historic and recent publications and unpublished reports concerning the
Mississippi gopher frog and other gopher frog species, as well as
literature documenting the decline of the longleaf pine ecosystem in
general. We considered all types of available information in making a
listing determination. This included reliable unpublished reports, non-
literature documentation, and personal communications with experts. The
public reviewed the proposed rule, which also was peer reviewed
according to our policy (see ``Peer Review'' section). In the process
of updating the proposed rule, some citations have changed due to the
publication in peer-reviewed journals of some data originally cited as
personal communications, unpublished manuscripts, or theses. We used
our best professional judgment and based our decision on the best
scientific and commercial data available, as required by section
4(b)(1) of the Act.
Issue 2: The Service does not have sufficient scientific
information to conclude that the Mississippi gopher frog is a distinct
species or a distinct population segment. As a result, the evaluation
of the five factors is insufficient to support the listing of the frog.
Response: We analyzed the Mississippi gopher frog in relation to
the three elements necessary for a population to be listed under the
Act as a distinct vertebrate population segment--discreteness,
significance, and population segment conservation status (see
``Distinct Vertebrate Population Segment'' section). The commenters did
not provide any data to support their assertions. The best available
scientific evidence supports the designation of the Mississippi gopher
frog as a distinct vertebrate population segment.
Issue 3: The scientific data may provide support that the
Mississippi gopher frog is a distinct population segment. However,
since there is only one extant population, this population cannot be
considered the same as populations, now extinct, which once occurred
within the described range of Rana sevosa (west of Mobile Bay).
Response: In the original description of Rana sevosa, Goin and
Netting (1940) restricted this species to the area of the Gulf coast
from Louisiana to west of Mobile Bay, Alabama. They considered Mobile
Bay a biogeographic barrier. At that time, gopher frogs were not known
from other areas of eastern Alabama or the Florida panhandle. Gopher
frogs were later discovered in these areas and subsequent authors
extended the range of what was then described as the subspecies R.
capito sevosa into eastern Alabama and the panhandle of Florida. The
range extension was based on similarities in size and coloration of
frogs across this area. However, no empirical data exist to support
this designation (P. Moler, Florida Fish and Wildlife Conservation
Commission, pers. comm. 2000). Young and Crother (2001) recently
completed genetic analyses of gopher frogs from Mississippi, eastern
Alabama, and the panhandle of Florida. Their results, showing
differences between Alabama and Florida panhandle populations and the
Mississippi gopher frog, provide evidence that gopher frogs differ on
either side of Mobile Bay. Since the Mississippi gopher frog occurs
within the original geographic area described by Goin and Netting for
Rana sevosa, we will regard all populations historically distributed
within that original area as part of the Mississippi gopher frog
distinct population segment until such time as data dictate otherwise.
Issue 4: The Service should conduct more research before a listing
decision is made.
Response: We have conducted and supported research on the
Mississippi gopher frog for the past 10 years. We have learned much
about the species during this period. Although there are still aspects
of this species' life history which are not known, the information
standard in section 4(b)(1) of the Act does not require us to possess
detailed or extensive information about the general biology of the
species or to make an actual determination of the causes for the
species' status to make a listing determination. We have made the
decision that the Mississippi gopher frog is in danger of extinction
using the best available scientific and commercial information as
required by the Act's information standard. We evaluated all

[[Page 62997]]

information with regard to its applicability to determination of
species status using the five factors described under section 4(a)(1).
Issue 5: The Service should conduct more surveys before a listing
decision is made. The Service may have missed populations of the
Mississippi gopher frog due to the ongoing drought.
Response: Surveys for Mississippi gopher frogs have been ongoing
since the late 1980s (see ``Background'' section). Most of the
available habitat has been degraded or destroyed at historical sites.
The drought has made sampling difficult; however, at most sites
surveyed, poor habitat quality was the limiting factor, not lack of
water. We used our best professional judgement and based our
determination on the best scientific and commercial data available, as
required by section 4(b)(1) of the Act.
Issue 6: Service suggestions that forest management activities have
caused population declines in the Mississippi gopher frog are
inappropriate.
Response: The best available information on the effects of timber
management on the Mississippi gopher frog, cited in the ``Background''
and ``Summary of Factors Affecting the Species'' sections, indicates
that habitat alteration, including loss of ground cover vegetation,
destruction of subterranean refugia and alteration of hydrology at
previously occupied sites, has been a causative factor in the decline
of gopher frogs throughout the range of Rana capito sevosa. The manner,
timing, and extent of silvicultural activities all dictate what effects
they may have on the Mississippi gopher frog and its habitat. Timber
management that avoids adverse effects to important habitat
characteristics is compatible with maintenance of the Mississippi
gopher frog, as evidenced by its continued occurrence on the DeSoto
National Forest.

Peer Review

In accordance with our July 1, 1994 (59 FR 34270), Interagency
Cooperative Policy on Peer Review, we requested the expert opinions of
three independent specialists regarding pertinent scientific or
commercial data and assumptions relating to supportive biological and
ecological information in the proposed rule. The purpose of such review
is to ensure that the listing decision is based on scientifically sound
data, assumptions, and analyses, including input of appropriate experts
and specialists.
We requested three individuals who possess expertise on gopher frog
natural history and ecology to review the proposed rule and provide any
relevant scientific data relating to taxonomy, distribution, or to the
supporting biological data used in our analyses of the listing factors.
All expressed their belief that the data supported protection of the
Mississippi gopher frog distinct population segment under the Act. We
have incorporated their comments into the final rule, as appropriate,
and briefly summarized their observations below.
All three reviewers strongly supported the listing of the
Mississippi gopher frog as endangered. One reviewer provided his
assessment of the available taxonomic data for the Mississippi gopher
frog. He agreed with our determination of the geographic range of the
Mississippi gopher frog distinct population segment. The second
reviewer provided comments on our analysis of Mississippi gopher frog
telemetry data. He believed that the cessation of movement in frogs
followed to the proximity of the clearcut could have been explained by
several factors other than the habitat changes on the site. He
suggested that the location where they stopped could have been the
burrow where they normally resided; that the lack of rainfall may have
affected their movements; and that the timeframe the frogs were tracked
was too short to accurately determine the length of their movements.
The third reviewer commented that emigrating juveniles are more subject
to predation or dessication than adults as they move out of the pond.
As a result, he believed that good quality terrestrial habitat close to
the breeding pond, including cover objects, may be especially important
for metamorphs.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information
available, we have determined that the Mississippi gopher frog distinct
population segment should be classified as an endangered species. We
followed the procedures found at section 4(a)(1) of the Act (16 U.S.C.
1531 et seq.) and regulations (50 CFR part 424) issued to implement the
listing provisions of the Act. We may determine a species to be
endangered or threatened due to one or more of the five factors
described in section 4(a)(1). These factors and their application to
the Mississippi gopher frog distinct population segment (Rana capito
sevosa Goin and Netting 1940) are as follows:

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

The range of the Mississippi gopher frog has been reduced as a
result of habitat destruction and modification (see ``Background''
section). Longleaf pine forested habitat has been reduced to less than
2 percent of its original distribution. Historically, the Mississippi
gopher frog distinct population segment occurred in at least nine
counties or parishes in the States of Alabama, Mississippi, and
Louisiana. Today, it is known from only one site in Harrison County,
Mississippi. Potentially available habitat continues to be degraded due
to the accelerated rate of residential and commercial development in
Harrison County.
The private property 200 m (656 ft) immediately north of the only
known Mississippi gopher frog breeding site is slated for residential
and commercial development, including a 20,000-unit retirement
community (L. Lewis, Brown and Mitchell, Inc., pers. comm. 1999). This
site was clearcut and prepared in 1994 prior to acquisition by the
development company. Potential habitat for the Mississippi gopher frog
was considerably degraded as a result. Richter (1998) reported that the
majority of gopher frogs leaving the breeding pond moved in a northerly
direction towards this private property. Three frogs, tracked using
transmitters, were observed at the fence line delineating the DeSoto
National Forest property boundary from the property (Richter et al.
2001). It seems likely that Mississippi gopher frogs may have occurred
on this site in the very recent past. We are currently working with the
developers of the site on a plan to restore and protect habitat in a
``no development zone'' on the property. Nevertheless, the large scale
of development in the vicinity of the remaining habitat for the
Mississippi gopher frog, including both ongoing and planned highway
expansion, will fragment the remaining longleaf pine habitat (see
``Factor E''). Urbanization will expand along these highway corridors
and further reduce available habitat for the frog.
The remaining breeding pond for the Mississippi gopher frog is
located in the DeSoto National Forest. Silviculture, including timber
sales with associated clearcutting and replanting, is currently the
primary activity in this area. Incompatible timber management could
alter the suitability of the Mississippi gopher frog's remaining
habitat (see ``Background'' section). The private property north of the
breeding pond

[[Page 62998]]

(described above) was previously owned by a timber company. The
negative effects of the clearcutting and site-preparation activities
included the destruction of all burrows and stump holes that could have
been used by migrating or resident frogs. During bedding, the soil
structure and below-ground structure (burrows, stump holes) were
destroyed as hummocks with deep furrows on either side were created on
which to replant trees. In addition, all overstory was removed from the
site. The immediate result of this activity was creation of an area
that would represent a desert to moisture-requiring frogs. Although at
least three frogs moved to the vicinity of this site, it is not known
what effect the altered landscape may have had on their movements. The
effects of the timber harvest and replanting on the Mississippi gopher
frog population are unknown. The frogs may or may not have used the
site prior to the timbering activities. However, the resultant changes
in habitat have made the site currently unsuitable for them.
Several recent studies (National Council on Air and Stream
Improvement, Inc. (NCASI), unpub. data 1999, Baughman 2000, Russell
2000) have demonstrated that management of industrial forest lands can
be compatible with maintaining a diverse amphibian community. However,
rare amphibians which are endemic to the longleaf pine ecosystem, such
as gopher frogs (LaClaire 1997), are not a typical component of this
amphibian community on industrial forest lands. For example, a recent
survey of ephemeral ponds on intensively managed forest lands found
gopher frogs in only 17 of 444 ponds (4 percent) surveyed in Alabama,
Florida, and Georgia (NCASI, unpub. data 1999). The loss of essential
upland and wetland habitat features is most likely responsible for the
absence of these species. Habitat alterations resulting from historical
land use practices, including fire suppression (see ``Factor E''),
removal of downed logs and other coarse woody debris, and short
rotation times, may offer a partial explanation for the loss of these
habitat features (Baughman 2000, Russell 2000).
Historical gopher frog breeding sites have been degraded and
destroyed by roads that pass through or are adjacent to ponds. Erosion
of unpaved roads adjacent to breeding sites may result in an influx of
sediment from surrounding uplands during rainstorms. Runoff from paved
roads may include petrochemicals or other substances toxic to frogs.
The hydroperiod (period during which a wetland holds water) of the
ponds can be negatively affected by increased input of water to the
sites or by the road acting as a dam, both of which would create a more
permanent pond. In addition, heavily traveled roads pose a threat to
migrating frogs.
The open canopy and flat, unforested bottom of the Mississippi
gopher frog breeding pond represent an alluring site for dumping
unwanted trash and riding off-road vehicles (ORV). Many temporary ponds
throughout the southeast have been degraded as a result of garbage
dumping (LaClaire, pers. obs. 1994). ORVs can cause direct mortality of
gopher frog tadpoles and adults (J. Jensen, Georgia Department of
Natural Resources, pers. comm. 1996) as well as alter the quality of a
breeding site. ORVs alter the contours of the pond floor, eliminate
herbaceous vegetation, and can alter the hydrology of the site
(LaClaire, pers. obs. 1995). Loss of herbaceous vegetation caused by
ORVs could also discourage gopher frog reproduction, since egg masses
are attached to stems of herbaceous vegetation (Young 1997; Richter and
Seigel 1998a, 1998b). ORV tracks have been documented within the
Mississippi gopher frog breeding site (G. Johnson, pers. comm. 1994).
In 1994, an area of the DeSoto National Forest within 2.4 km (1.5 mi)
of the existing breeding pond was temporarily closed due to
accumulation of trash, soil erosion, and water quality degradation
caused by ORVs, damage to endangered and sensitive plants and animals,
and other vandalism (K. Godwin, U.S. Forest Service, pers. comm. 1994).
ORV use on the DeSoto National Forest will likely increase in the
vicinity of the pond when the proposed housing development is completed
adjacent to the site.

B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes

Direct take of Mississippi gopher frogs for commercial,
recreational, scientific, or educational purposes is not currently a
threat. However, large numbers of other species of frogs are nationally
and internationally traded for resale in pet stores and for food.
Listing the Mississippi gopher frog may make it more attractive to
collectors through recognition of its rarity. In addition, the life
history and ecology of Mississippi gopher frogs make them vulnerable to
collecting, as well as vandalism. Only one breeding pond remains for
this frog. At predictable times of the year, all breeding adults
congregate at this site to breed. A single act of collecting or
vandalism could destroy the population.

C. Disease or Predation

Disease is not known to be a factor in the decline of the
Mississippi gopher frog. However, during monitoring of our efforts to
alter a nearby pond and create a new gopher frog breeding site, a
fungal disease was observed in leopard frog tadpoles. Subsequent to
this discovery, tadpole populations were monitored more closely and 100
percent mortality of these leopard frog tadpoles was observed. A sample
of diseased tadpoles was sent to the U.S. Geological Survey's National
Fish Wildlife Health Center in Madison, Wisconsin. The fungus has not
yet been identified and the mode of transmission is unknown. However,
this yeast-like fungus has been implicated in five die-offs at sites
nationwide and has affected six species of ranid (frogs of the genus
Rana) tadpoles (D. Green, National Wildlife Health Center, Madison,
Wisconsin, pers. comm. 2001). Biosecurity measures, such as sterilizing
boots and equipment, have been implemented at the existing Mississippi
gopher frog breeding pond as a precaution against disease transmission.
An unrelated chytrid fungus has been implicated in the decline of
amphibians in the western United States, including the endangered
Wyoming toad (M. Jennings, U.S. Fish and Wildlife Service, pers. comm.
2001).
Predation may be a threat. Survivorship from the egg stage to
metamorphosis is typically low for ranid frogs and was estimated by
Richter (1998) to be 4.91 percent for Mississippi gopher frogs.
Additional predation, beyond the norm, could result in complete
reproductive failure. Richter and Seigel (1998a) reported that
approximately 44 percent of all eggs at the existing breeding site were
lost in 1997 prior to hatching. An undetermined amount of the egg
mortality was due to predation by caddisfly larvae (Order Trichoptera,
Family Phryganeidae) on the egg masses. Richter (2000) observed no
larval caddisflies at the Mississippi gopher frog breeding site in
1996, but caddisflies infested 100 percent of Mississippi gopher frog
egg masses in 1997 and 1998. He found that two larval caddisflies in
laboratory test chambers could consume between 11 and 24 developing
embryos of leopard frogs (another ranid species; gopher frog embryos
were not used due to their rarity). The effect of caddisfly predation
on the Mississippi gopher frog population is unknown. However, any
increases in mortality resulting from predation are a cause for concern
in such an extremely small and isolated population.

[[Page 62999]]

Predation from fish probably contributed to the loss of historic
populations. Temporary ponds altered to form more permanent bodies of
water and stocked with fish are no longer suitable breeding sites. Fish
may have also entered breeding sites through the connection of drainage
ditches and firebreaks to pond basins. The Mississippi gopher frog is
adapted to temporary wetlands, and its larvae cannot survive the heavy
predation of bass and sunfish commonly used to stock ponds. One
historical location in Louisiana was destroyed in part because it has
become a permanent pond inhabited by fish (Thomas 1996). In
Mississippi, a calling male was discovered in 1987 at a site that has
since been converted to a fish pond (T. Mann, pers. comm. 1998). No
gopher frogs have been reported subsequently at this site, which is no
longer considered suitable breeding habitat.

D. The Inadequacy of Existing Regulatory Mechanisms

Louisiana has no protective legislation for the Mississippi gopher
frog. Alabama protects all gopher frogs as nongame species (J. Woehr,
Alabama Department of Conservation and Natural Resources, pers. comm.
1994). The Mississippi gopher frog is listed as endangered in
Mississippi (Mississippi Department of Wildlife, Fisheries and Parks
1992), and both Mississippi and Alabama provide protection against
collecting of the species. However, this legislation does nothing to
alleviate the habitat loss that has caused the decline of the species.
The only known breeding site for the Mississippi gopher frog is on U.S.
Forest Service land in Mississippi. As a result, there has been a
concerted effort to encourage the U.S. Forest Service to manage the
site for the frog. Although the U.S. Forest Service has an obligation
under the National Forest Managment Act, to ensure their land
management activities protect fish and wildlife, forest management is
often limited by existing funding. Other avenues of funding become
available to the U.S. Forest Service once a species is federally
listed.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Fire is needed to maintain the natural longleaf pine community.
Ecologists consider fire suppression a primary reason for the
degradation of the remaining longleaf pine acreage in the southeast
(Noss 1988, Ware et al. 1993). Fire suppression has reduced the quality
of terrestrial and aquatic habitat for the Mississippi gopher frog.
Canopy closure from fire suppression alters the forest floor vegetation
and threatens the open, herbaceous character typical of gopher frog
breeding ponds (Kirkman 1995, LaClaire 1995). In addition, fire causes
the release of nutrients bound in plant material. This release of
nutrients results in a flush of primary productivity that is important
to the herbivorous gopher frog tadpoles. Fire suppression has probably
negatively impacted all of the historical Mississippi gopher frog
sites. At this time, fire is the only known management tool that will
maintain the existing breeding pond as suitable habitat.
Between 1991 and 2001, the U.S. Forest Service has conducted
periodic growing-season burns of the forest compartment surrounding the
Mississippi gopher frog breeding pond and of the pond basin itself.
These burns improved habitat conditions, but the frequency and extent
of burning needs to be improved. Appropriate burning regimes must be
maintained to prevent woody encroachment and to enhance herbaceous
growth. Residential and commercial development and road construction in
the vicinity of the breeding pond will create increased concerns about,
and likely reduce the use of, fire as a management tool. The fire
management officer on the DeSoto National Forest estimates that, due
primarily to smoke management concerns, that development in the area
will cause a 20 percent reduction in the amount of days that the U.S.
Forest Service will have the opportunity to burn Mississippi gopher
frog habitat (J. Boykin, U.S. Forest Service, pers. comm. 2001).
Habitat fragmentation of the longleaf pine ecosystem, resulting
from habitat conversion, threatens the survival of the single remaining
Mississippi gopher frog population. Studies have shown that the loss of
small, fragmented populations is common, and recolonization is critical
for their regional survival (Fahrig and Merriam 1994, Burkey 1995). As
patches of available habitat become separated beyond the dispersal
range of a species, populations are more sensitive to genetic,
demographic, and environmental variability and may be unable to recover
(Gilpin 1987, Sjogren 1991, Blaustein et al. 1994). This scenario
describes threats to the Mississippi gopher frog. Five historical
Mississippi gopher frog localities exist within a 19.2 km (12 mi)
radius of the remaining site. Highways have fragmented this area and
contributed to habitat degradation. The most recent records of frogs at
these locales was in the late 1980s. The planned construction of
highways within 5 km (3.1 mi) both to the north and east of the
existing Mississippi gopher frog pond will further isolate the
remaining population from other potentially restorable habitat in the
DeSoto National Forest. The Biloxi River and additional residential
development bound the habitat to the west and south.
Low reproductive potential may also present a threat to the
Mississippi gopher frog's continued existence. Studies at the
Mississippi breeding site suggest that female Mississippi gopher frogs
may not breed until 2 to 3 years of age and may breed only in alternate
years and/or have only a single lifetime breeding event (Richter and
Seigel 1998b). In addition, survival of juvenile frogs is thought to be
extremely low (Richter and Seigel 1998b).
Annual variability in rainfall influences how frequently and how
long a pond is appropriate breeding habitat. Reliance on specific
weather conditions results in unpredictable breeding events and reduces
the likelihood that recruitment will occur every year. No larvae
survived to metamorphosis in 3 out of 6 years of the reproductive study
of the extant Mississippi gopher frog population (summarized in Richter
and Seigel 1998b). In addition, study results indicate that only 1 year
out of 6 resulted in the explosive numbers (2,488) of juveniles typical
of temporary pond breeding amphibians.
The Mississippi gopher frog population is highly susceptible to
genetic isolation, inbreeding, and random demographic events as a
result of having only one known breeding site. Long-lasting droughts or
frequent floods may negatively affect the population. Although these
are natural processes, other threats, such as habitat fragmentation,
habitat degradation, and low reproductive potential, may cause the
population to decline to the point that it cannot recover.
Pesticides and herbicides pose a threat to amphibians such as the
Mississippi gopher frog, because their permeable eggs and skin readily
absorb substances from the surrounding aquatic or terrestrial
environment (Duellman and Trueb 1986). Aquatic frog larvae are likely
more vulnerable than adults to chemical changes in their environment.
Negative effects of commonly used pesticides and herbicides on
amphibian larvae include delayed metamorphosis, paralysis, reduced
growth rates, and mortality (Bishop 1992, Berrill et al. 1997, Bridges
1999). Sublethal levels of chemical contamination can alter juvenile
recruitment in amphibian populations (Bridges and Semlitsch 2000).
Adult gopher frogs are

[[Page 63000]]

predaceous and could be affected by pesticides accumulated in their
invertebrate prey. Herbicides may alter the density and species
composition of vegetation surrounding a breeding site and reduce the
number of potential sites for egg deposition, larval development, or
shelter for migrating frogs.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by this species in determining to make this rule final. Based on
this evaluation, the preferred action is to list the Mississippi gopher
frog distinct population segment as endangered. The Act defines an
endangered species as one that is in danger of extinction throughout
all or a significant portion of its range. A threatened species is one
that is likely to become an endangered species in the foreseeable
future throughout all or a significant portion of its range. As
discussed under Factor A, in spite of extensive surveys throughout the
known range of the Mississippi gopher frog, only one population of
approximately 100 adult frogs is known to exist. Natural processes,
such as genetic isolation, inbreeding, droughts, and floods, pose
ongoing threats to this population. Further, residential and commercial
development in conjunction with new and expanding highways will
increase habitat fragmentation and the likelihood of fire suppression.
Both habitat fragmentation and fire suppression pose threats to the
frog's remaining habitat. For these reasons, we find that the
Mississippi gopher frog distinct population segment is in danger of
extinction throughout all or a significant portion of its range and,
therefore, endangered status is appropriate.

Critical Habitat

Critical habitat is defined in section 3, paragraph 5(A), of the
Act as: (i) the specific areas within the geographical area occupied by
a species, at the time it is listed in accordance with the Act, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) that may require special
management considerations or protection; and (ii) specific areas
outside the geographical area occupied by a species at the time it is
listed, upon a determination that such areas are essential for the
conservation of the species. ``Conservation'' means the use of all
methods and procedures needed to bring the species to the point at
which listing under the Act is no longer necessary.
Section 4(a)(3) of the Act, and implementing regulations (50 CFR
424.12) require that, to the maximum extent prudent and determinable,
we designate critical habitat at the time the species is determined to
be endangered or threatened. In the proposed rule, we indicated we
would make a final critical habitat determination with the final
listing determination for the Mississippi gopher frog. However, our
budget for listing and critical habitat activities is currently
insufficient to allow us to immediately complete all of the listing
actions required by the Act. Listing the Mississippi gopher frog
without designation of critical habitat will allow us to concentrate
our limited resources on other listing actions that must be addressed,
while allowing us to invoke the protections needed for the conservation
of this species without further delay. This is consistent with section
4(b)(6)(C)(i) of the Act, which states that final listing decisions may
be issued without critical habitat designation when it is essential
that such determinations be promptly published. We will prepare a
critical habitat determination for the Mississippi gopher frog in the
future at such time as our available resources and priorities allow.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing results in public awareness and
conservation actions by Federal, State, and local agencies, private
organizations, and individuals. The Act provides for possible land
acquisition and cooperation with the States and requires that recovery
actions be carried out for all listed species. The protection required
of Federal agencies and the prohibitions against taking and harm are
discussed, in part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(4)
requires Federal agencies to confer informally with us on any action
that is likely to jeopardize the continued existence of a proposed
species or result in destruction or adverse modification of proposed
critical habitat. If a species is subsequently listed, section 7(a)(2)
of the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
formal consultation with us.
The Mississippi gopher frog occurs in the DeSoto National Forest,
Federal land administered by the U.S. Forest Service. The U.S. Forest
Service will be required to evaluate whether their activities have the
potential to adversely affect the Mississippi gopher frog. Their
activities that could adversely affect the frog include, but are not
limited to, forest management and road construction. Other Federal
agencies that may be involved in authorizing, funding, or carrying out
activities that may affect the Mississippi gopher frog include the U.S.
Army Corps of Engineers, due to their regulation of discharges of
dredged or fill material into wetlands under section 404 of the Clean
Water Act; the Federal Energy Regulatory Commission, due to their
oversight of gas pipeline and powerline rights-of-way; and the Federal
Highway Administration, if Federal funds are involved in road
construction. However, we have resolved nearly all section 7
consultations so that species are protected and project objectives are
met.
We have been working with the U.S. Forest Service since 1988 to
protect the last remaining population of the Mississippi gopher frog.
We have advised the U.S. Forest Service on protection and management
needs for this species. We have supported research on the ecology and
life history of this population by projects funded through our
cooperative agreement with the State of Mississippi under section 6 of
the Act. In addition, we have collaborated with the U.S. Forest Service
and the Mississippi Department of Wildlife, Fisheries and Parks on the
plans to move gopher tortoises to the existing breeding site to provide
additional subterranean refugia via the tortoise's burrows and to
create new breeding ponds for the frog. We have drafted a Memorandum of
Understanding with our partners and this document is currently under
review by all the parties.
Section 9 of the Act and its implementing regulations found at 50
CFR 17.21 set forth a series of general prohibitions and exceptions
that apply to all endangered wildlife. These prohibitions, in part,
make it illegal for any person subject to the jurisdiction of

[[Page 63001]]

the United States to take (includes harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect; or to attempt any of these),
import, export, ship in interstate commerce in the course of commercial
activity, or sell or offer for sale in interstate or foreign commerce
any endangered wildlife species. It is also illegal to possess, sell,
deliver, carry, transport, or ship any such wildlife that has been
taken illegally. Certain exceptions apply to our agents and agents of
State conservation agencies.
It is our policy, published in the Federal Register on July 1, 1994
(59 FR 34272), to identify, to the maximum extent practicable at the
time a species is listed, those activities that are or are not likely
to constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effects of the listing on
proposed and ongoing activities within a species' range.
We believe, based on the best available information, that the
following activities are unlikely to result in a violation of section 9
for the Mississippi gopher frog:
(1) Possession of legally acquired Mississippi gopher frogs;
(2) Lawful hunting activities;
(3) Lawful burning of habitat where the Mississippi gopher frog is
known to occur, including winter burning;
(4) Federally approved projects that involve activities such as
discharge of fill material, draining, ditching, bedding, diversion or
alteration of surface or ground water flow into or out of a wetland
(i.e., due to roads, impoundments, discharge pipes, etc.), when the
activity is conducted in accordance with any reasonable and prudent
measures given by us in accordance with section 7 of the Act; and,
(5) Conversion of longleaf pine habitat where the Mississippi
gopher frog does not occur.
We believe the following activities could potentially result in a
violation of section 9; however, possible violations are not limited to
these actions alone:
(1) Unauthorized killing, collecting, handling, or harassing of
individual Mississippi gopher frogs, including unauthorized use of off-
road vehicles in the wetland basins of known breeding sites of the
species.
(2) Possessing, selling, transporting, or shipping illegally taken
Mississippi gopher frogs;
(3) Unauthorized destruction or alteration of the hydrology of the
frog's wetland breeding sites. These actions would include activities
that alter the localized watershed that supplies water to the ponds or
alter the water-holding capacity at existing breeding sites.
Unauthorized actions that could alter the hydrology of breeding sites
would include discharge of fill material, draining, ditching, bedding,
clear-cutting within the wetland, diversion or alteration of surface or
ground water flow into or out of a wetland (i.e., due to roads,
impoundments, discharge pipes, etc.), and unauthorized use of vehicles
within the wetland; and,
(4) Discharge or dumping of toxic chemicals, silt, or other
pollutants (i.e., sewage, oil, pesticides, and gasoline) into isolated
wetlands or upland habitats supporting the species. This includes any
application of terrestrial or aquatic pesticide that results in the
mortality of adult frogs or tadpoles, regardless if the pesticide was
applied in accordance with the labeling instructions. This includes
drift from aerial applications and runoff from surface applications.
We will review other activities not identified above on a case-by-
case basis to determine whether they may be likely to result in a
violation of section 9 of the Act. We do not consider these lists to be
exhaustive and provide them as information to the public. You should
direct questions regarding whether specific activities may constitute a
violation of section 9 to the Field Supervisor of our Mississippi Field
Office (see ADDRESSES section).
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are at 50 CFR 17.22. For endangered
species, you may obtain permits for scientific purposes, to enhance the
propagation or survival of the species, and for incidental take in
connection with otherwise lawful activities. You may request copies of
the regulations regarding listed wildlife from, and address questions
about prohibitions and permits to, the U.S. Fish and Wildlife Service,
1875 Century Blvd., Suite 200, Atlanta, Georgia 30345, or telephone
404/679-4176; facsimile 404/679-7081.

National Environmental Policy Act

We have determined that we do not need to prepare an environmental
assessment, as defined under the authority of the National
Environmental Policy Act of 1969, in connection with regulations
adopted pursuant to section 4(a) of the Endangered Species Act, as
amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244).

Paperwork Reduction Act

This rule does not contain any new collections of information other
than those already approved under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., and assigned Office of Management and Budget
clearance 1018-0094. An agency may not conduct or sponsor, and a person
is not required to respond to, a collection of information unless it
displays a currently valid control number. For additional information
concerning permit and associated requirements for endangered species,
see 50 CFR 17.22.

References Cited

You may request a list of all references cited in this document, as
well as others, from the Mississippi Field Office (see ADDRESSES
section).

Author

The primary author of this proposed rule is Linda V. LaClaire,
Mississippi Field Office (see ADDRESSES section) (601/321-1126).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Amend Sec. 17.11(h) by adding the following, in alphabetical
order under AMPHIBIANS, to the List of Endangered and Threatened
Wildlife:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

[[Page 63002]]

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

* * * * * * *
Frog, Mississippi gopher......... Rana capitol sevosa. U.S.A. (AL, FL, LA, Wherever found west E 718 NA NA
MS). of Mobile and
Tombigbee Rivers
in Al, MS, and LA.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: November 26, 2001.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 01-29923 Filed 12-3-01; 8:45 am]
BILLING CODE 4310-55-P