[Federal Register Volume 66, Number 233 (Tuesday, December 4, 2001)]
[Rules and Regulations]
[Pages 62993-63002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29923]


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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