[Federal Register Volume 76, Number 183 (Wednesday, September 21, 2011)]
[Proposed Rules]
[Pages 58441-58455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24045]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2010-0085; MO 922110-0-0009-B4]
RIN 1018-AX12


Endangered and Threatened Wildlife and Plants; Listing and 
Designation of Critical Habitat for the Chiricahua Leopard Frog

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the March 15, 2011, proposed 
threatened status for the Chiricahua leopard frog (Lithobates 
chiricahuensis) and proposed designation of critical habitat under the 
Endangered Species Act of 1973, as amended (Act). We are proposing to 
revise the primary constituent elements (PCEs) and designate as 
critical habitat an additional 331 acres (133 hectares) for the 
Chiricahua leopard frog in Catron and Sierra Counties, New Mexico. We 
also announce the availability of a draft economic analysis and draft 
environmental assessment of the proposed designation of critical 
habitat for Chiricahua leopard frog and an amended required 
determinations section of the proposal. We are reopening the comment 
period to allow all interested parties an opportunity to comment 
simultaneously on the proposed rule, revisions to the proposed rule, 
the associated draft economic analysis and draft environmental 
assessment, and the amended required determinations section. Comments 
previously submitted need not be resubmitted, as they will be fully 
considered in preparation of the final rule.

DATES: We will consider comments received on or before October 21, 
2011. Comments must be received by 11:59 p.m. Eastern Time on the 
closing date. Any comments that we receive after the closing date may 
not be considered in the final decision on this action.

ADDRESSES: You may submit written comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R2-ES-2010-0085, which 
is the docket number for this rulemaking.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2010-0085; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We will post all comments on the Internet at http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S. 
Fish and Wildlife Service, Arizona Ecological Services Field Office, 
2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021; by telephone 
(602/242-0210), or by facsimile (602/242-2513). Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed listing and designation of 
critical habitat for the Chiricahua leopard frog that was published in 
the Federal Register on March 15, 2011 (76 FR 14126), our revised 
designation of critical habitat provided in this document, our draft 
economic analysis and draft environmental assessment of the proposed 
designation, and the amended required determinations provided in this 
document. We will consider information and recommendations from all 
interested parties. We are particularly interested in comments 
concerning:
    (1) Information about the status of the species, especially the 
Ramsey Canyon portion of the range, including:
    (a) Genetics and taxonomy;
    (b) Historical and current range, including distribution patterns;
    (c) Historical and current population levels, and current and 
projected trends; and
    (d) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to Chiricahua leopard frog and 
regulations that may be addressing those threats.
    (4) Additional information concerning the range, distribution, and 
population size of Chiricahua leopard frog, including the locations of 
any additional populations.
    (5) Any information on the biological or ecological requirements of 
Chiricahua leopard frog.
    (6) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act, including whether 
there are threats to

[[Page 58442]]

the species from human activities, how the designation may ameliorate 
or worsen those threats, and if any potential increase in threats 
outweighs the benefits of designation such that the designation of 
critical habitat may not be prudent.
    (7) Specific information on:
    (a) The amount and distribution of the Chiricahua leopard frog's 
habitat;
    (b) What areas occupied at the time of listing that contain 
features essential to the conservation of the species should be 
included in the designation, and why;
    (c) Special management considerations or protections that the 
physical and biological features essential to the conservation of the 
Chiricahua leopard frog that have been identified in this proposal may 
require, including managing for the potential effects of climate 
change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species, and why.
    (8) Land-use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (9) Any probable economic, national security, or other relevant 
impacts of designating as critical habitat any area that may be 
included in the final designation. We are particularly interested in 
any impacts on small entities or families, and the benefits of 
including or excluding areas that exhibit these impacts.
    (10) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (11) Information on whether the benefits of an exclusion of any 
particular area outweigh the benefits of inclusion under section 
4(b)(2) of the Act.
    (12) Information on the projected and reasonably likely impacts of 
climate change on the Chiricahua leopard frog and the critical habitat 
areas we are proposing.
    (13) Information on the extent to which the description of economic 
impacts in the draft economic analysis and draft environmental 
assessment is complete and accurate.
    (14) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the draft economic analysis, and 
how the consequences of such reactions, if likely to occur, would 
relate to the conservation and regulatory benefits of the proposed 
critical habitat designation.
    (15) Information regarding the amended primary constituent elements 
(PCEs).
    If you submitted comments or information on the proposed rule (76 
FR 14126; March 15, 2011) during the initial comment period from March 
15, 2011, to May 16, 2011, please do not resubmit them. We will 
incorporate them into the public record as part of this comment period, 
and we will fully consider them in the preparation of our final 
determination. Our final determination concerning revised critical 
habitat will take into consideration all written comments and any 
additional information we receive during both comment periods. On the 
basis of public comments, we may, during the development of our final 
determination, find that areas proposed are not essential, are 
appropriate for exclusion under section 4(b)(2) of the Act, or are not 
appropriate for exclusion.
    You may submit your comments and materials concerning the proposed 
rule, draft economic analysis, or draft environmental assessment by one 
of the methods listed in the ADDRESSES section. We will not consider 
comments sent by e-mail or fax or to an address not listed in the 
ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule, draft economic 
analysis, and draft environmental assessment, will be available for 
public inspection on http://www.regulations.gov at Docket No. FWS-R2-
ES-2010-0085, or by appointment, during normal business hours, at the 
U.S. Fish and Wildlife Service, Arizona Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of 
the proposed rule and the draft economic analysis on the Internet at 
http://www.regulations.gov at Docket Number FWS-R2-ES-2010-0085, or by 
mail from the Arizona Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT section).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for Chiricahua leopard frog in this 
document. For more information on previous Federal actions concerning 
the Chiricahua leopard frog, refer to the proposed designation of 
critical habitat published in the Federal Register on March 15, 2011 
(76 FR 14126). For more information on the Chiricahua leopard frog or 
its habitat, refer to the final listing rule published in the Federal 
Register on June 13, 2002 (67 FR 40790), and the recovery plan (72 FR 
30820, June 4, 2007), which are available at the Arizona Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    We published a proposed rule to list the Chiricahua leopard frog as 
threatened in the Federal Register on June 14, 2000 (65 FR 37343). We 
published a final rule listing the species as threatened on June 13, 
2002 (67 FR 40790). Included in the final rule was a special rule (see 
50 CFR 17.43(b)) to exempt operation and maintenance of livestock tanks 
on non-Federal lands from the section 9 take prohibitions of the Act. 
For further information on actions associated with listing the species, 
please see the final listing rule (67 FR 40790; June 13, 2002).
    In a May 6, 2009, order from the Arizona District Court, the 
Secretary of the Interior was required to publish a critical habitat 
prudency determination for the Chiricahua leopard frog and, if found 
prudent, a proposed rule to designate critical habitat by December 8, 
2010. Because of unforeseen delays related to species taxonomic issues, 
we requested a 3-month extension to the court-ordered deadlines for 
both the proposed and final rules. On November 24, 2010, the extension 
was granted and new deadlines of March 8, 2011, for the proposed rule 
and March 8, 2012, for the final rule were established for completing 
and submitting the critical habitat rules to the Federal Register.
    On March 15, 2011, we published a proposed rule to designate 
critical habitat for the Chiricahua leopard frog (76 FR 14126). We 
proposed to designate as critical habitat approximately 11,136 acres 
(ac) (4,510 hectares (ha)) in 40 unit(s) located in Apache, Cochise, 
Gila, Graham, Greenlee, Pima, Santa Cruz, and Yavapai Counties, 
Arizona; and Catron, Hidalgo, Grant, Sierra, and Socorro Counties, New 
Mexico. That proposal had a 60-day comment period ending May 16, 2011. 
In addition, because of a taxonomic revision of the Chiricahua leopard 
frog, we are reassessing the

[[Page 58443]]

status of and threats to the currently described species Lithobates 
chiricahuensis and proposed the listing as threatened of the currently 
described species. The March 15, 2011, proposal had a 60-day comment 
period, ending May 16, 2011. We received no requests for a public 
hearing, and, therefore, no public hearing will take place.

Changes From Previously Proposed Critical Habitat

    In this notice, we are notifying the public of changes to the 
proposed critical habitat rule. This revision proposes to add three 
additional units (Units 41, 42, and 43) and to amend the PCEs. The 
three new units identified in this proposed rule constitute an addition 
to the areas we proposed for designation as critical habitat on March 
15, 2011 (76 FR 14126). The explanation for this proposed change is 
discussed below. All areas proposed on March 15, 2011, remain proposed 
for designation as critical habitat. We will submit a final critical 
habitat designation for Chiricahua leopard frog to the Federal Register 
on or before March 8, 2012.
    This revision proposes three additional units as critical habitat, 
to include the areas in the vicinity of Kerr Canyon, West Fork Gila 
River, and Palomas Creek (Service 2008, pp. 1-2; Service 2009; pp. 15-
16). As a result of these changes, we are proposing to add 219 ac (89 
ha) under Federal and 112 ac (45 ha) under private ownership to the 
critical habitat designation. In total, we are proposing to designate 
as critical habitat approximately 11,467 ac (4,644 ha) for the species. 
For a full description of the previously proposed Units 1 through 40, 
please see the proposed critical habitat rule (76 FR 14126, March 15, 
2011).
    In the previous proposed critical habitat rule (76 FR 14126, March 
15, 2011), we identified specific sites occupied by Chiricahua leopard 
frogs at the time of listing in June 2002 that contain sufficient PCEs 
to support life-history functions essential for the conservation of the 
species. We included sites where the species was breeding, utilizing 
historic information and all known breeding and adult locality data 
available at that time. Subsequently, we discovered that we overlooked 
three sites in New Mexico that were occupied at the time of listing and 
contained the essential physical and biological features. Therefore, 
the purpose of this revision to the proposed critical habitat is to 
include these three areas that were occupied at the time of listing, 
are currently occupied by Chiricahua leopard frogs, contain the 
physical or biological features essential to the conservation of the 
species, and meet the definition of critical habitat for the species in 
New Mexico. We believe these additional areas included in the proposed 
designation, if secured, would provide for the conservation of 
Chiricahua leopard frog by:
    (1) Maintaining the physical and biological features essential to 
the conservation of the species in New Mexico where the species is 
known to occur, and
    (2) Maintaining the current distribution in New Mexico, thus 
preserving genetic variation throughout the range of the species and 
minimizing the potential effects of local extirpation.

Amended Primary Constituent Elements for the Chiricahua Leopard Frog

    We are proposing to amend the PCEs proposed in our March 15, 2011, 
proposed rule (76 FR 14126) to provide more clarification by making 
them more objective and measurable. By being more objective and 
measurable, future section 7 consultations on critical habitat will be 
more precise. The original meaning of the proposed PCEs has not 
changed. Based on the needs and our current knowledge of the life 
history, biology, and ecology of the species, and the habitat 
requirements for sustaining the essential life-history functions of the 
species, we have determined that, in total, the PCEs essential to the 
conservation of the Chiricahua leopard frog are:
    (1) Aquatic breeding habitat and immediately adjacent uplands 
exhibiting the following characteristics:
    (a) Standing bodies of fresh water (with salinities less than 5 
parts per thousand, pH greater than or equal to 5.6, and pollutants 
absent or minimally present), including natural and manmade (e.g., 
stock) ponds, slow-moving streams or pools within streams, off-channel 
pools, and other ephemeral or permanent water bodies that typically 
hold water or rarely dry for more than a month. During periods of 
drought, or less than average rainfall, these breeding sites may not 
hold water long enough for individuals to complete metamorphosis, but 
they would still be considered essential breeding habitat in non-
drought years.
    (b) Emergent and or submerged vegetation, root masses, undercut 
banks, fractured rock substrates, or some combination thereof, but 
emergent vegetation does not completely cover the surface of water 
bodies.
    (c) Nonnative predators (e.g., crayfish (Orconectes virilis), 
American bullfrogs (Lithobates catesbeianus), nonnative predatory 
fishes) absent or occurring at levels that do not preclude presence of 
the Chiricahua leopard frog.
    (d) Absence of chytridiomycosis, or if present, then environmental, 
physiological, and genetic conditions are such that allow persistence 
of Chiricahua leopard frogs.
    (e) Upland areas that provide opportunities for foraging and 
basking that are immediately adjacent to or surrounding breeding 
aquatic and riparian habitat.
    (2) Dispersal and nonbreeding habitat, consisting of areas with 
ephemeral (present for only a short time), intermittent, or perennial 
water that are generally not suitable for breeding, and associated 
upland or riparian habitat that provides corridors (overland movement 
or along wetted drainages) for frogs among breeding sites in a 
metapopulation with the following characteristics:
    (a) Are not more than 1.0 mile (1.6 kilometers) overland, 3.0 miles 
(4.8 kilometers) along ephemeral or intermittent drainages, 5.0 miles 
(8.0 kilometers) along perennial drainages, or some combination thereof 
not to exceed 5.0 miles (8.0 kilometers).
    (b) In overland and nonwetted corridors, provides some vegetation 
cover or structural features (e.g., boulders, rocks, organic debris 
such as downed trees or logs, small mammal burrows, or leaf litter) for 
shelter, forage, and protection from predators; in wetted corridors, 
provides some ephemeral, intermittent, or perennial aquatic habitat.
    (c) Are free of barriers that block movement by Chiricahua leopard 
frogs, including, but not limited to, urban, industrial, or 
agricultural development; reservoirs that are 50 acres (20 hectares) or 
more in size and contain predatory nonnative fishes, bullfrogs, or 
crayfish; highways that do not include frog fencing and culverts; and 
walls, major dams, or other structures that physically block movement.
    With the exception of impoundments, livestock tanks, and other 
constructed waters, critical habitat does not include manmade 
structures (such as buildings, aqueducts, runways, roads, and other 
paved areas) and the land on which they are located existing within the 
legal boundaries.

Proposed Critical Habitat Designation

    During our compilation of the administrative record for the 
previous proposal, we found three occupied sites that were overlooked 
where reproduction has been documented recently in New Mexico, which 
led to this revision and proposal of additional critical habitat units 
for the species.

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Below, we present a brief description of the three additional units and 
reasons why we believe they meet the definition of critical habitat for 
the Chiricahua leopard frog. The physical and biological features of 
critical habitat in stream and riverine lotic (actively moving water) 
systems are contained within the riverine and riparian ecosystems 
formed by the wetted channel and adjacent floodplains within 328 
lateral feet (100 lateral meters) on either side of bankfull stage. 
Further detail may be found in the prior proposal (76 FR 14126, March 
15, 2011).
    Section 3 of the Act defines critical habitat as 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 essential to the conservation of the species and 
that may require special management considerations or protection, and 
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. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting critical habitat must consult with us on the effects of their 
proposed actions, under section 7(a)(2) of the Act.

Recovery Unit 6 (White Mountains-Upper Gila, Arizona and New Mexico)

Unit 41: Kerr Canyon
    The Kerr Canyon unit contains 19 ac (8 ha) of Gila National Forest 
land and 6 ac (2 ha) of private land in Catron County, New Mexico. The 
1.0-mi (1.6-km) reach extends from Kerr Spring, located on the Gila 
National Forest, through an intermittent drainage to Kerr Canyon Pond 
(sometimes referred to as the Kerr Canyon Trick Tank) to include the 
adjacent private property in Kerr Canyon. This unit is proposed as 
critical habitat because it was occupied at the time of listing and 
currently contains sufficient PCEs (PCE 1) to support life-history 
functions essential for the conservation of the species.
    Our records indicate that this area contained a robust breeding 
population of Chiricahua leopard frogs from 2002 through 2007 (Service 
2008, pp. 1-2). However, during surveys conducted in 2008 and 2009, few 
individuals were observed (Service 2009a, p. 2). We believe the 
population experienced a mass mortality event or die-off from 
chytridiomycosis (Service 2009a, p. 2; Service 2009b, p. 1; Service 
2009c, p. 1). Tiger salamanders have also recently been found in Kerr 
Canyon Pond (Service 2009a, p. 2); however, the abundance of these 
Chiricahua leopard frog predators is currently unknown. Partial surveys 
of Kerr Canyon Creek and Pond were conducted in 2010, with no frogs 
observed, yet thorough surveys are needed to determine whether frogs 
persist in the area.
    Kerr Canyon will be managed as an isolated population, as it is 
currently separated from other populations in Tularosa Creek (Unit 28) 
that are at least 6.5 mi (10.4 km) away. As recently as 2007, Kerr 
Canyon supported a robust breeding population (Service 2007a, p. 2); 
however, the current population status is greatly reduced from 2007 
numbers, or may possibly be extirpated. We suspect that observed 
declines in Chiricahua leopard frog abundance can be attributed to 
chytridiomycosis or predation. Because of the disease and competition 
with nonnative species, we find that the essential features in this 
area may require special management considerations or protection.
Unit 42: West Fork Gila River
    The West Fork Gila River unit contains 177 ac (72 ha) of Gila 
National Forest land in Catron County, New Mexico. This 7.0-mi (11.2-
km) reach runs from Turkeyfeather Spring, through an intermittent 
drainage to the confluence with the West Fork Gila River, then 
downstream in the West Fork Gila River to confluence with White Creek. 
Within this unit, the Upper West Fork is divided into two perennial 
segments by a 1.2-mi (2.0-km) long ephemeral reach between 
Turkeyfeather Creek and Whiskey Creek. The area within Unit 42 was 
occupied at the time of listing and currently contains sufficient PCEs 
(PCE 1) to support life-history functions essential for the 
conservation of the species.
    The West Fork Gila River unit was occupied at the time of listing 
and Chiricahua leopard frogs are currently present. The species has 
been observed in West Fork Gila River since 1995, with reproduction 
observed in 2001 (Blue Earth Ecological Consultants 2002, pp. 16-17; 
Service 2007, pp. B-64; Service 2009, p. 15). The population is not 
well studied; however, this section of the West Fork Gila River is long 
enough that it could support a robust population. This unit will be 
managed as an isolated population, because it is likely occupied by low 
numbers of frogs and the nearest known, robust breeding population 
occurs on Main Diamond in Unit 30, over 5 mi (8 km) away along a 
perennial water course. There may be some potential for linking this 
population to Unit 30, if aquatic habitat between the two units could 
be identified, renovated as needed, and populations of frogs 
established. However, potential sites and presence of PCEs in these 
connecting areas have not been investigated in any detail.
    Chytridiomycosis has been found on Chiricahua leopard frogs within 
this unit and nonnative predators are present, including fish, 
crayfish, and American bullfrogs. Even though a cooperative restoration 
project between the Service, the U.S. Forest Service, and New Mexico 
Department of Game and Fish is underway to restore native fish and 
remove nonnative predatory fish in this unit, the frog population is 
currently threatened by nonnative predators and chytridiomycosis 
(Service 2009, pp. 15-16). As such, the essential features in this unit 
may require special management considerations or protection to minimize 
impacts resulting from these threats.

Recovery Unit 8 (Black-Mimbres-Rio Grande, New Mexico)

Unit 43: South Fork Palomas Creek
    The South Fork Palomas Creek unit consists of 23 ac (9 ha) of Gila 
National Forest land and 106 ac (43 ha) of private land in Sierra 
County, New Mexico. This 4.5-mi (7.3-km) reach of South Fork Palomas 
Creek runs downstream from Wagonbed Canyon to Avilas Well, including 
Circle Seven Well, but not Avilas Well. This unit is proposed as 
critical habitat because it was occupied at the time of listing, is 
currently occupied, and contains sufficient PCEs (PCEs 1 and 2) to 
support life-history functions essential for the conservation of the 
species.
    Our records for this area are intermittent; however, South Fork 
Palomas Creek was occupied at the time of listing (Christman 2003, p. 
5) and Chiricahua leopard frogs reproduced at Circle Seven Well in 2010 
(Christman 2010, p. 1). Currently, we consider this area to be occupied 
by the species. This unit has undergone management actions that likely 
have resulted in the persistence of Chiricahua leopard frogs in the 
South Fork Palomas drainage. Chiricahua leopard frogs were observed in 
low numbers in 2002 and 2003 in the South Fork Palomas Creek, but 
Circle Seven Well (a steel rim tank that overflows to an earthen tank) 
was dry and unoccupied during the time of listing. Due to Circle Seven 
Well's close proximity to South Fork Palomas Creek, we believe that 
Circle Seven Well was historically occupied by the Chiricahua

[[Page 58445]]

leopard frog. Also, sometime after the 2003 surveys, the well has 
undergone a conversion from a windmill to solar well, providing a 
continuous water source and the Circle Seven Well has since been 
occupied.
    Summer rains in 2003, following a wildfire in upland slopes, caused 
an ash flow into South Fork Palomas Creek. Active management actions in 
2003 included capturing 188 Chiricahua leopard frog tadpoles from an 
ash-affected pool and releasing half of the individuals to the lower 
portion of South Fork Palomas Creek and releasing half of the 
individuals farther down the drainage to the steel rim portion of 
Avilas Well (a steel rim tank that overflows to an earthen tank). 
Monitoring post-translocations indicated that more than 20 individuals 
metamorphosed and escaped the steel rim tank, but did not become 
established in the earthen tank at Avilas Well. To date, Avilas Well 
remains unoccupied; however, Chiricahua leopard frogs continue to 
occupy South Fork Palomas Creek, including documented breeding in 
Circle Seven Well. The proposed area in South Fork Palomas Creek and 
Circle Seven Well currently contains sufficient PCEs (PCE1) to support 
life-history functions essential for the conservation of the species.
    Under section 4(b)(2) of the Act, private lands in this unit, which 
are part of the Ladder Ranch, will be considered for exclusion from the 
final rule. The 156,439-acre Ladder Ranch is owned by Turner 
Enterprises and is managed for its biodiversity. The Ladder Ranch has 
been an active participant in the conservation of a number of rare and 
listed species, including the Mexican wolf (Canis lupus baileyi), 
Bolson tortoise (Gopherus flavomarginatus), Chiricahua leopard frog, 
black-tailed prairie dog (Cynomys ludovicianus), American bison (Bison 
bison), and Rio Grande cutthroat trout (Oncorhynchus clarki 
virginalis). Management for the Chiricahua leopard frog on the Ladder 
Ranch included fencing the ranch's waters from bison that graze the 
area, reestablishment of populations using wild-to-wild translocations, 
maintenance of wells and tanks, and controlling bullfrogs. The Ladder 
Ranch also monitors the frogs and habitats, and has recently initiated 
a captive-breeding facility and program to rear frogs for population 
augmentation and reestablishment. The Service has provided funding for 
the captive-breeding program under the Partners for Fish and Wildlife 
Program and other granting authorities. The Ladder Ranch maintains 
captive-propagation facilities for the Chiricahua leopard frog under a 
section 10(a)(1)(A) enhancement of survival permit from the Service.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan.
    The final decision on whether to exclude any areas will be based on 
the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a draft economic analysis concerning the proposed 
critical habitat designation, which is available for review and comment 
(see ADDRESSES section).

Draft Economic Analysis

    To consider the economic impacts ``of specifying any particular 
area as critical habitat,'' as section 4(b)(2) of the Act requires, the 
Service must first identify the probable economic impacts that stem 
from a designation (50 CFR 424.19). We have interpreted ``probable 
economic impacts'' to be those potential impacts that are reasonably 
likely to occur as a result of the critical habitat designation. The 
identification of the probable incremental effects of a critical 
habitat designation involves comparing the economic and other relevant 
impacts that would be present without the designation of a particular 
area as critical habitat with what would be expected if the particular 
area is included in the designation--in other words, a comparison of 
the world with and without critical habitat. A key aspect of this 
comparison requires identifying, at a general level, the additional 
protections for species (e.g., project modification or conservation 
measures) or changes in behavior (e.g., increased awareness that may 
result in reinitiations of consultation, or additional consultations, 
under section 7 of the Act; compliance with other laws such as State 
environmental oversight regulations) and the corresponding costs and 
impacts to society that may result as a consequence of the critical 
habitat designation. The scope of probable impacts, then, is inevitably 
determined by the purpose and function of critical habitat as 
understood at the time of designation and the conservation measures in 
place prior to the designation for the particular species and its 
habitat.
    The Service traditionally understood the first sentence of section 
4(b)(2) of the Act to require consideration of only those impacts that 
are solely attributable to--that would not occur ``but for''--the 
proposed critical habitat designation. Under this approach, known as 
the ``incremental effects analysis'' (otherwise referred to by the 
courts as the ``baseline approach''), the Service isolates the probable 
impacts that would result solely from the designation (incremental 
effects) from those that stem also from other causes, such as the 
underlying listing determination or other conservation measures being 
implemented for the species and its habitat (baseline effects). Once 
identified, the resulting incremental effects of the designation are 
then used in the balancing analysis, if one is conducted, under the 
second sentence of section 4(b)(2) for evaluating the benefits of 
including a particular area in, or excluding it from, critical habitat, 
and for evaluating compliance with the required determinations.
    However, the application of this relatively straightforward 
paradigm had become problematic by the late 1990s, in light of our 
interpretations and practices that had the effect of minimizing the 
role of critical habitat in safeguarding species' recovery. This 
stemmed in part from the Service's and National Marine Fisheries 
Service's 1986 joint regulations implementing the interagency 
consultation provisions of section 7 of the Act (50 CFR 402). Those 
regulations govern the assessment of

[[Page 58446]]

Federal actions that may have adverse impacts on listed species or 
their critical habitat. They interpret and implement the statute's 
prohibitions against actions that are likely to jeopardize the 
continued existence of listed species or result in destruction or 
adverse modification of critical habitat. However, two key definitions 
(``jeopardize the continued existence of'' and ``destruction or adverse 
modification'') had been defined in a similar manner in that they each 
evaluated impacts on both survival and recovery of a species. Moreover, 
our general practice had been to infrequently designate critical 
habitat in areas where the species was not currently present; because 
consultation under the jeopardy standard can occur wherever the species 
is present, this limited the circumstances in which a consultation 
under the adverse-modification standard would take place without a 
concomitant consultation under the jeopardy standard. Because the 
section 7 prohibition against Federal agency actions that may result in 
``destruction or adverse modification'' is the most significant and 
direct protection afforded by a critical habitat designation, equating 
the two standards while making them occur in conjunction with each 
other made it practically impossible to distinguish the protections 
stemming from critical habitat (i.e., incremental effects) from those 
afforded a species by it being listed as an endangered or threatened 
species (i.e., baseline effects).
    As a result, case law significantly influenced the Service's 
methodology for evaluating the probable economic effects of a critical 
habitat designation. In 2001, the United States Court of Appeals for 
the Tenth Circuit held that, in light of the narrow role reserved for 
critical habitat under the regulations and the Service's view at the 
time, the Service was legally precluded from relying on the 
incremental-effects approach. New Mexico Cattle Growers Ass'n v. United 
States Fish & Wildlife Serv., 248 F.3d 1277, 1283-85 (10th Cir. 2001). 
The court specifically identified the source of the problem as being 
``FWS's long held policy position that [critical habitat 
determinations] are unhelpful, duplicative, and unnecessary.'' The 
court held that this position was rooted in the interpretations of the 
``jeopardy standard'' and the ``adverse modification standard'' in 50 
CFR 402.02, which the court saw as being defined either to be 
``virtually identical'' or such that the latter was subsumed into the 
``jeopardy standard.''
    To satisfy section 4(b)(2) of the Act in light of the then-current 
regulations, the court ruled that the Service must consider all impacts 
that stem in any way from the proposed critical habitat designation, 
even if they are also partially caused (or, caused ``coextensively'') 
by listing. In other words, even if there was no ``but for'' economic 
impact as a result of critical habitat designation, the Service was 
still required to consider the coextensive economic impacts. The court 
did not define ``coextensive'' economic analysis; however, the Services 
interpreted ``coextensive'' to be the sum of anticipated baseline and 
incremental economic impacts. As a consequence, following the New 
Mexico Cattle Growers decision, the Service began to apply a 
coextensive approach that evaluated all costs related to the 
conservation of the species and its habitat, including those attributed 
to the species being listed as an endangered or threatened species.
    Meanwhile, other courts began to conclude that the definition of 
``destruction or adverse modification'' in the 1986 regulations did not 
adequately fulfill the statute's conservation purpose. In fact, the 
Ninth Circuit in Gifford Pinchot Task Force v. US. Fish & Wildlife 
Service, 378 F.3d 1059 (9th Cir.), modified, 387 F.3d 968 (9th Cir. 
2004), invalidated the regulatory definition of ``destruction or 
adverse modification.'' Following the Ninth Circuit's decision, most 
district court decisions have rejected coextensive economic analyses. 
For example, the court in Cape Hatteras Access Pres. Alliance v DOI, 
344 F. Supp. 2d 108, 128-30 (D.D.C. 2004) (Cape Hatteras) found that an 
evaluation of the incremental effect of a critical habitat designation 
was reasonable and permissible. In that decision the court stated, 
``[t]he baseline approach is a reasonable method for assessing the 
actual costs of a particular critical habitat designation. To find the 
true cost of a designation, the world with the designation must be 
compared to the world without it * * *. In order to calculate the costs 
above the baseline, those that are the ``but for'' result of 
designation, the agency may need to consider the economic impact of 
listing and other events that contribute to and fall below the 
baseline.''
    Similarly, in 2010, the Ninth Circuit concluded that the faulty 
underlying premises that led to the invalidation of the incremental 
effects (baseline approach) in 2001 no longer applied, and that our 
consideration of ``but for'' impacts in the increment above the 
baseline is permissible under the Act (Arizona Cattle Growers Ass'n v. 
Salazar, 606 F.3d 1160, 1173 (9th Cir. 2010). It therefore held, in 
light of this change in circumstances, that ``the FWS may employ the 
baseline approach in analyzing a critical habitat designation.'' In so 
holding, the court noted that the baseline approach is ``more logical 
than'' the coextensive approach. The Ninth Circuit further reaffirmed 
its conclusion in Home Builders Ass'n of Northern California v. U.S. 
Fish & Wildlife Serv. 616 F.3d 983 (9th Cir. 2010), in which plaintiffs 
challenged the use of the Service's incremental-effects (baseline) 
approach. The Court held that the Service properly analyzed the 
economic impacts of the critical habitat designation for vernal pool 
species and stated that the plain language of the Act directs the 
agency to consider only those impacts caused by the critical habitat 
designation itself.
    In 2008, the Solicitor for the Department of the Interior drafted a 
Memorandum Opinion summarizing case law on the Secretary's authority to 
exclude areas from a critical habitat designation under section 4(b)(2) 
of the Act, including the appropriate use of economic analyses in 
critical habitat determinations (Department of the Interior Solicitor 
Memorandum, October 3, 2008, The Secretary's Authority to Exclude Areas 
from a Critical Habitat Designation under Section 4(b)(2) of the 
Endangered Species Act (Opinion M-37016)). In this opinion, the 
Solicitor concluded that

the reasoning in the Cape Hatteras line of cases was persuasive for 
the proposition that ``to find the true cost of a designation, the 
world with the designation must be compared to the world without 
it.'' Cape Hatteras, 344 F. Supp. 2d at 130. The purpose of 
excluding an area from critical habitat is to avoid the impacts of 
the designation, or to realize the benefits that the Secretary 
determines will flow from that exclusion. Benefits of exclusion are 
often in the form of avoiding a cost imposed by the designation. By 
definition, when impacts are completely ``coextensive,'' ``such that 
they will occur even if the area is not designated, any ``cost'' 
imposed by the designation will not be avoided if the area at issue 
is excluded. Therefore, exclusion of the area based on such costs 
would serve no purpose.

    Consistent with recent case law and the 2008 Solicitors Memorandum 
Opinion, the Service concludes that the appropriate analysis to 
consider economic impacts of a critical habitat designation is to limit 
the evaluation of the probable economic effects to those that are 
incremental to, or result solely from, the designation itself. The 
Service also believes that the use of an incremental-effects analysis 
is sufficient to fulfill the requirement under section

[[Page 58447]]

4(b)(2) of the Act. Therefore, the Service applied the incremental-
effects approach to evaluate the probable economic impacts of critical 
habitat designation for the Chiricahua leopard frog.
    Since the Service currently does not have an operative regulatory 
definition of ``destruction or adverse modification,'' the Service 
attempted to clarify the difference between the jeopardy and adverse 
modification standards for the Chiricahua leopard frog critical habitat 
in our Incremental Effects Memorandum. This memorandum outlined typical 
conservation actions, project modifications, and minimization measures 
that would be requested by the Service to meet the ``not likely to 
destroy or adversely modify'' standard, above what would be requested 
to avoid jeopardy to the species. This evaluation of the incremental 
effects as outlined in the Incremental Effects Memorandum has been used 
as the basis to develop the draft economic analysis of this proposed 
designation of critical habitat.
    The purpose of the draft economic analysis is to identify and 
analyze the probable incremental economic impacts associated with the 
proposed critical habitat designation for the Chiricahua leopard frog. 
The analysis looks retrospectively at baseline impacts incurred since 
the species was listed, and forecasts both baseline and incremental 
impacts likely to occur if we finalize the proposed critical habitat 
designation. For a further description of the methodology of the 
analysis, see Chapter 2 of the draft economic analysis.
    The draft economic analysis provides estimated costs of the 
reasonably probable incremental economic impacts of the proposed 
critical habitat designation for the Chiricahua leopard frog over the 
next 20 years, which was determined to be the appropriate period for 
analysis because limited planning information is available for most 
activities to forecast activity levels for projects beyond a 20-year 
timeframe. The draft economic analysis quantifies economic impacts of 
Chiricahua leopard frog conservation efforts associated with the 
following categories of activity:
    (1) Improperly managed livestock grazing: Includes drying of stock 
tanks and changes to water quality due to cattle feces.
    (2) Mining: Includes copper mining operations and associated 
mining-related contaminants and runoff.
    (3) Water diversion and management: Includes groundwater pumping, 
agricultural development, and operations of dams and diversions.
    (4) Residential and commercial development and transportation: 
Includes sedimentation and runoff associated with construction.
    (5) Fires and fire suppression activities: Includes ash flow and 
fire retardants from fires and fire suppression activities; and,
    (6) Nonnative species introductions/disease: Includes saltcedar 
control, stocking of predatory fishes, bullfrogs, or crayfish, as well 
as chytridiomycosis (an infectious fungal disease).
    Because a significant level of baseline protection exists for the 
Chiricahua leopard frog, no significant economic impacts are likely to 
result from the designation of critical habitat for this species. 
Incremental costs are limited to administrative efforts of new and 
reinitiated consultations to consider adverse modification of critical 
habitat for the frog.
    The draft economic analysis estimates that the present value 
impacts of critical habitat designation are $1,300,000 assuming a 7 
percent real discount rate. This figure represents an annualized impact 
of approximately $115,000. As stated above, these costs represent 
expectations of additional administrative effort as part of future 
section 7 consultations that consider both jeopardy and adverse 
modification.
    As we stated earlier, we are soliciting data and comments from the 
public on the draft economic analysis, as well as all aspects of the 
proposed rule and our amended required determinations. We may revise 
the proposed rule or supporting documents to incorporate or address 
information we receive during the public comment period. In particular, 
we may exclude an area from critical habitat if we determine that the 
benefits of excluding the area outweigh the benefits of including the 
area, provided the exclusion will not result in the extinction of this 
species.

Draft Environmental Assessment

    The purpose of the draft environmental assessment, prepared 
pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C. 
4321 et seq.), is to identify and disclose the environmental 
consequences resulting from the proposed action of designating critical 
habitat for the Chiricahua leopard frog. In the draft environmental 
assessment, three alternatives are evaluated: Alternative A, the 
proposed rule with exclusion areas; Alternative B, proposed rule 
without exclusion areas; and the no action alternative. Under 
Alternative A, critical habitat units on private and other lands could 
potentially be excluded in the final rule based on economic impact, 
national security, or other relevant impacts. The potential exclusion 
areas discussed in the proposed rule include lands owned by the 
American Museum of Natural History, Beatty's Guest Ranch, Diamond A 
Ranch, Magoffin Ranch, San Rafael Ranch, State of Arizona, The Nature 
Conservancy, and Turner Enterprises. Alternative B is the current 
proposal, and the no action alternative is equivalent to no designation 
of critical habitat for Chiricahua leopard frog. The no action 
alternative is required by NEPA for comparison to the other 
alternatives analyzed in the draft environmental assessment.
    As we stated earlier, we are soliciting data and comments from the 
public on the draft environmental assessment, as well as all aspects of 
the proposed rule. We may revise the proposed rule or supporting 
documents to incorporate or address information we receive during the 
comment period on the environmental consequences resulting from our 
designation of critical habitat.

Required Determinations--Amended

    In our March 15, 2011, proposed rule (76 FR 14126), we indicated 
that we would defer our determination of compliance with several 
statutes and executive orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the draft economic 
analysis. We have now made use of the draft economic analysis data to 
make these determinations. In this document, we affirm the information 
in our proposed rule concerning E.O. 13132 (Federalism), E.O. 12988 
(Civil Justice Reform), the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), and the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). However, based on the draft economic 
analysis data and the draft environmental assessment, we are amending 
our required determination concerning E.O. 12866 (Regulatory Planning 
and Review), the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), 
E.O. 12630 (Takings), E.O. 13211 (Energy, Supply, Distribution, and 
Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.).

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under Executive Order 12866 (E.O. 12866). OMB 
bases its

[[Page 58448]]

determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, as amended by the Small 
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. Based on our draft economic 
analysis of the proposed designation, we provide our analysis for 
determining whether the proposed rule would result in a significant 
economic impact on a substantial number of small entities. Based on 
comments we receive, we may revise this determination as part of our 
final rule.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
the Chiricahua leopard frog would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities, such as livestock management, 
fire management, habitat management, water management, transportation, 
recreation, and development. In order to determine whether it is 
appropriate for our agency to certify that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities, we considered each industry or category individually. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement. 
Critical habitat designation will not affect activities that do not 
have any Federal involvement; designation of critical habitat only 
affects activities conducted, funded, permitted, or authorized by 
Federal agencies. In areas where the Chiricahua leopard frog is 
present, Federal agencies already are required to consult with us under 
section 7 of the Act on activities they fund, permit, or implement that 
may affect the species. If we finalize this proposed critical habitat 
designation, consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process.
    In the draft economic analysis, we evaluated the potential economic 
effects on small entities resulting from implementation of conservation 
actions related to the proposed designation of critical habitat for the 
Chiricahua leopard frog. We estimate that up to 171 small entities may 
be affected by section 7 consultations stemming from this rule. 
Annualized incremental economic impacts to small businesses range from 
$254 per year for transportation and residential and commercial 
development to $8,390 per year for livestock management. Although the 
analysis did not have access to average annual revenues for small 
entities in the proposed critical habitat areas, and thus estimated 
annualized impacts as a percentage of annual revenues could not be 
determined, it is unlikely that these impacts would be significant. 
Please refer to the draft economic analysis of the proposed critical 
habitat designation for a more detailed discussion of potential 
economic impacts.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. Estimated 
incremental costs that may be borne by small entities consist of 
additional administrative costs for livestock management, water 
management, transportation, and development activities, but it is 
unlikely that these impacts would be significant. For the above reasons 
and based on currently available information, we certify that, if 
promulgated, the proposed critical habitat designation would not have a 
significant economic impact on a substantial number of small business 
entities. Therefore, an initial regulatory flexibility analysis is not 
required.

Energy Supply, Distribution, or Use

    Pursuant to Executive Order No. 13211, ``Actions Concerning 
Regulations that Significantly Affect Energy Supply, Distribution, or 
Use,'' issued May 18, 2001, Federal agencies must prepare and submit a 
``Statement of Energy Effects'' for all ``significant energy actions.'' 
The purpose of this requirement is to ensure that all Federal agencies 
``appropriately weigh and consider the effects of the Federal 
Government's regulations on the supply, distribution, and use of 
energy.'' The Office of Management and Budget provides guidance for 
implementing this Executive Order, outlining nine outcomes that may 
constitute ``a significant adverse effect'' when compared with the 
regulatory action under consideration (Memorandum For Heads of 
Executive Department Agencies, and Independent Regulatory Agencies, 
Guidance For Implementing E.O. 13211, M-01-27, Office of Management and 
Budget, July 13, 2001, http://www.whitehouse.gov/omb/memoranda/m01-27.html.). As none of the nine outcomes is relevant to this analysis, 
energy-related impacts associated with the Chiricahua leopard frog 
conservation activities within the proposed critical habitat are not 
expected. Therefore, we have made a preliminary determination that this 
action is not a significant energy action, and no Statement of Energy 
Effects is required. However, we will further evaluate this issue as we 
complete our final economic analysis, and review and revise this 
assessment as appropriate.

[[Page 58449]]

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments. Therefore, a Small Government Agency Plan is 
not required. However, we will further evaluate this issue as we 
complete our final economic analysis, and review and revise this 
assessment as appropriate.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the Chiricahua leopard frog in a takings implications 
assessment. Critical habitat designation does not affect landowner 
actions that do not require Federal funding or permits, nor does it 
preclude development of habitat conservation programs or issuance of 
incidental take permits to allow actions that do require Federal 
funding or permits to go forward. The takings implications assessment 
concludes that this proposed designation of critical habitat does not 
pose significant takings implications for lands within or affected by 
the designation. However, we will further evaluate this issue as we 
complete our final economic analysis, and review and revise this 
assessment as appropriate.

National Environmental Policy Act (NEPA)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in 
connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)).] However, when the range of the species includes States 
within the Tenth Circuit, such as that of the Chiricahua leopard frog, 
under the Tenth Circuit ruling in Catron County Board of Commissioners 
v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we 
will undertake a NEPA analysis for critical habitat designation. In 
accordance with the Tenth Circuit, we have completed a draft 
environmental assessment to identify and disclose the environmental 
consequences resulting from the proposed designation of critical 
habitat for the Chiricahua leopard frog. Our preliminary determination 
is that the designation of critical habitat for the Chiricahua leopard 
frog would not have direct impacts on the environment. However, we will 
further evaluate this issue as we complete our final environmental 
assessment.

Authors

    The primary authors of this notice are the staff members of the 
Arizona Ecological Services Field Office, Southwest Region, U.S. Fish 
and Wildlife Service.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 76 FR 14126, March 15, 2011, as follows:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

    2. In Sec.  17.95, amend paragraph (d) by adding an entry for 
``Chiricahua leopard frog (Lithobates chiricahuensis),'' at Sec.  
17.95(d) is proposed to be amended by revising proposed paragraphs 
(d)(2), (d)(5),and and by adding new paragraphs (d)(46) through (d)(48) 
to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
Chiricahua leopard frog (Lithobates chiricahuensis)
* * * * *
    (2) The primary constituent elements of critical habitat for the 
Chiricahua leopard frog are:
    (i) Aquatic breeding habitat and immediately adjacent uplands 
exhibiting the following characteristics:
    (A) Standing bodies of fresh water (with salinities less than 5 
parts per

[[Page 58450]]

thousand, pH greater than or equal to 5.6, and pollutants absent or 
minimally present), including natural and manmade (e.g., stock) ponds, 
slow-moving streams or pools within streams, off-channel pools, and 
other ephemeral or permanent water bodies that typically hold water or 
rarely dry for more than a month. During periods of drought, or less 
than average rainfall, these breeding sites may not hold water long 
enough for individuals to complete metamorphosis, but they would still 
be considered essential breeding habitat in non-drought years.
    (B) Emergent and or submerged vegetation, root masses, undercut 
banks, fractured rock substrates, or some combination thereof, but 
emergent vegetation does not completely cover the surface of water 
bodies.
    (C) Nonnative predators (e.g., crayfish, American bullfrogs, 
nonnative predatory fishes) absent or occurring at levels that do not 
preclude presence of the Chiricahua leopard frog.
    (D) Absence of chytridiomycosis, or if present, then environmental, 
physiological, and genetic conditions are such that allow persistence 
of Chiricahua leopard frogs.
    (E) Upland areas that provide opportunities for foraging and 
basking that are immediately adjacent to or surrounding breeding 
aquatic and riparian habitat.
    (ii) Dispersal and nonbreeding habitat, consisting of areas with 
ephemeral (present for only a short time), intermittent, or perennial 
water that are generally not suitable for breeding, and associated 
upland or riparian habitat that provides corridors (overland movement 
or along wetted drainages) for frogs among breeding sites in a 
metapopulation with the following characteristics:
    (A) Are not more than 1.0 mile (1.6 kilometers) overland, 3.0 miles 
(4.8 kilometers) along ephemeral or intermittent drainages, 5.0 miles 
(8.0 kilometers) along perennial drainages, or some combination thereof 
not to exceed 5.0 miles (8.0 kilometers).
    (B) In overland and nonwetted corridors, provides some vegetation 
cover or structural features (e.g., boulders, rocks, organic debris 
such as downed trees or logs, small mammal burrows, or leaf litter) for 
shelter, forage, and protection from predators; in wetted corridors, 
provides some ephemeral, intermittent, or perennial aquatic habitat.
    (C) Are free of barriers that block movement by Chiricahua leopard 
frogs, including, but not limited to, urban, industrial, or 
agricultural development; reservoirs that are 50 acres (20 hectares) or 
more in size and contain predatory nonnative fishes, bullfrogs, or 
crayfish; highways that do not include frog fencing and culverts; and 
walls, major dams, or other structures that physically block movement.
* * * * *
    (5) Note: Chiricahua Leopard Frog Critical Habitat Index Map 
follows:
BILLING CODE 4310-55-P

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[GRAPHIC] [TIFF OMITTED] TP21SE11.001


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* * * * *
    (46) Unit 41: Kerr Canyon, Catron County, New Mexico.
    (i) From Kerr Spring (33.900561 N, 108.664732 W) downstream in 
unnamed drainage in Kerr Canyon to Kerr Canyon Pond (33.649088 N, 
108.517011 W), a distance of approximately 0.98 drainage miles (1.58 
km).
    (ii) Note: Map of Unit 41, Kerr Canyon (Map 42), follows:
    [GRAPHIC] [TIFF OMITTED] TP21SE11.002
    

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    (47) Unit 42: West Fork Gila River, Catron County, New Mexico.
    (i) From Turkeyfeather Spring (33.337486 N, 108.528607 W) 
downstream in Turkeyfeather Creek to its confluence with West Fork Gila 
River (33.32593 N, 108.517011 W); then downstream and southeast in West 
Fork Gila River to its confluence with White Creek (33.3274675 N, 
108.4925 W), a distance of approximately 6.97 drainage miles (11.22 
km).
    (ii) Note: Map of Unit 42, West Fork Gila River (Map 43), follows:
    [GRAPHIC] [TIFF OMITTED] TP21SE11.003
    

[[Page 58454]]


    (48) Unit 43: South Fork Palomas Creek, Sierra County, New Mexico.
    (i) From the confluence of an unnamed tributary in Wagonbed Canyon 
and South Fork Palomas Creek (33.164592 N, 107.723155 S), downstream in 
South Fork Palomas Creek to, but not including, Avilas Well (33.162567 
N, 107.661564 S), and including a galvanized tank and a dirt tank at 
Circle Seven Well (33.169617 N, 107.684648 W) and an overland segment 
from Circle Seven Well (33.169617 N, 107.684648 W) to South Fork 
Palomas Creek (107.685045 N, 33.1688196 W), a distance of approximately 
4.5 drainage miles (7.3 km) and 0.75 overland miles (1.21 km).
    (ii) Note: Map of Unit 43, Palomas Creek (Map 44), follows:
    [GRAPHIC] [TIFF OMITTED] TP21SE11.004
    

[[Page 58455]]


* * * * *

    Dated: September 12, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-24045 Filed 9-20-11; 8:45 am]
BILLING CODE 4310-55-C