12664 Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations

The amendments in today’s final rule submission of a petition for vehicle may be indirectly controlled by do not make those effects any more reconsideration or other administrative the antilock brake system. stringent, and in some respects, they proceedings before parties may file suit * * * * * make it easier for a manufacturer to in court. Issued on: February 23, 1998. comply with them. Specifically, by List of Subjects in 49 CFR Part 571 Ricardo Martinez, allowing the use of a single driveline Administrator. Imports, Motor vehicle safety, Motor sensor to control rear wheel speeds and [FR Doc. 98–6522 Filed 3–13–98; 8:45 am] allowing wheels on tag axles to lock vehicles, Rubber and rubber products, BILLING CODE 4910±59±P during testing, vehicle manufacturers Tires. will have more flexibility to comply In consideration of the foregoing, the with the requirements of this rule and, agency is amending Standard No. 105, as a result, costs could be reduced. Hydraulic Brake Systems in Title 49 of DEPARTMENT OF THE INTERIOR the Code of Federal Regulations at Part B. Regulatory Flexibility Act 571 as follows: Fish and Wildlife Service NHTSA has also considered the 50 CFR Part 17 effects of both this final rule and the PART 571Ð[AMENDED] original final rule under the Regulatory 1. The authority citation for Part 571 RIN 1018±AC63 Flexibility Act. I hereby certify that it continues to read as follows: will not have a significant economic Endangered and Threatened Wildlife impact on a substantial number of small Authority: 49 U.S.C. 322, 30111, 30115, and Plants; Determination of 30117, and 30166, delegation of authority at Endangered Status for Five Freshwater entities. Accordingly, the agency has not 49 CFR 1.50. CFR 1.50. prepared a final regulatory flexibility Mussels and Threatened Status for analysis. 2. Section 571.105 is amended by Two Freshwater Mussels From the NHTSA concluded that the March adding the definitions of ‘‘motor home’’ Eastern Gulf Slope Drainages of 1995 final rule had no significant and ‘‘tandem axle’’ in S4 and by Alabama, Florida, and Georgia impact on a substantial number of small revising S5.5.1, to read as follows: AGENCY: Fish and Wildlife Service, entities. Thus, today’s final rule, which § 571.105 Standard No. 105; Hydraulic and Interior. could potentially reduce costs electric brake systems. associated with the March 1995 final ACTION: Final rule. * * * * * rule, will not have a significant SUMMARY: The Fish and Wildlife Service economic impact on a substantial S4. Definitions. (Service) determines five freshwater number of small entities. * * * * * mussels, the fat threeridge (Amblema C. National Environmental Policy Act Motor home means a motor vehicle neislerii), shinyrayed pocketbook with motive power that is designed to NHTSA has analyzed this rulemaking (Lampsilis subangulata), Gulf provide temporary residential moccasinshell (Medionidus action for the purposes of the National accommodations, as evidenced by the Environmental Policy Act. The agency penicillatus), Ochlockonee presence of at least four of the following moccasinshell (Medionidus has determined that implementation of facilities: cooking; refrigeration or ice this action will not have any significant simpsonianus), and oval pigtoe box; self-contained toilet; heating and/or (Pleurobema pyriforme) to be impact on the quality of the human air conditioning; a potable water supply environment. endangered species, and two freshwater system including a faucet and a sink; mussels, the Chipola slabshell (Elliptio D. Executive Order 12612 (Federalism) and a separate 110–125 volt electric chipolaensis) and purple bankclimber NHTSA has analyzed this action power supply and/or an LP gas supply. (Elliptoideus sloatianus) to be under the principles and criteria in * * * * * threatened species under the Executive Order 12612. The agency has Tandem axle means a group of two or Endangered Species Act of 1973, as determined that this notice does not more axles placed in close arrangement amended (Act). These mussels are have sufficient Federalism implications one behind the other with the center endemic to eastern Gulf Slope streams to warrant the preparation of a lines of adjacent axles not more than 72 draining the Apalachicolan Region of Federalism Assessment. No State laws inches apart. southeast Alabama, southwest Georgia, will be affected. * * * * * and north Florida. Their center of S5.5.1 Each vehicle with a GVWR distribution is the Apalachicola- E. Civil Justice Reform greater than 10,000 pounds, except for Chattahoochee-Flint (ACF) River basin This final rule does not have any any vehicle with a speed attainable in of southeast Alabama, southwest retroactive effect. Under 49 U.S.C. 2 miles of not more than 33 mph, shall Georgia, and northwest Florida, and the 30103, whenever a Federal motor be equipped with an antilock brake Ochlockonee River system of southwest vehicle safety standard is in effect, a system that directly controls the wheels Georgia and northwest Florida. They are State may not adopt or maintain a safety of at least one front axle and the wheels currently known from restricted standard applicable to the same aspect of at least one rear axle of the vehicle. portions of from one to four of performance which is not identical to On each vehicle with a GVWR greater independent river systems. These the Federal standard, except to the than 10,000 pounds but not greater than species inhabit stable sandy and extent that the State requirement 19,500 pounds and motor homes with a gravelly substrates in medium-sized imposes a higher level of performance GVWR greater than 10,000 pounds but streams to large rivers, often in areas and applies only to vehicles procured not greater than 22,500 pounds swept free of silt by the current. The for the State’s use. 49 U.S.C. 30161 sets manufactured before March 1, 2001, the abundance and distribution of the seven forth a procedure for judicial review of antilock brake system may also directly mussel species decreased historically final rules establishing, amending or control the wheels of the rear drive axle from habitat loss associated with revoking Federal motor vehicle safety by means of a single sensor in the reservoir construction, channel standards. That section does not require driveline. Wheels on other axles of the construction and maintenance, and Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations 12665 erosion. These habitat changes have As a group, freshwater mussels are (O’Brien 1996). Several host fish resulted in significant extirpations extremely long-lived, with life spans of families have been identified for the (localized loss of populations), up to 130 years for certain species threeridge, a congener of the fat restricted and fragmented distributions, (Neves and Moyer 1988, Bauer 1992). threeridge, and include eight species of and poor recruitment of young. Life spans of these seven species are centrarchids (the sunfish family) (Fuller DATES: Effective: April 15, 1998. unknown. Based on the longevity of a 1974, Hoggarth 1992). Centrarchids have ADDRESSES: The complete congener of the fat threeridge (the also been determined to be fish hosts for administrative file for this rule is threeridge [Amblema plicata]; Stansbery species of Elliptio (Fuller 1974, available for inspection, by 1971b), the longevity of thick-shelled Hoggarth 1992), and may also serve as appointment, during normal business species (Stansbery 1961), and the large host for the Chipola slabshell and hours at the U.S. Fish and Wildlife size attained by the fat threeridge and possibly the purple bankclimber, which, Service, Jacksonville Field Office, 6620 purple bankclimber (see ‘‘Species genetically, is very similar to Elliptio Southpoint Drive South, Suite 310, Accounts’’ in this section), the latter two spp. (M. Mulvey, Savannah River Jacksonville, Florida 32216. species probably have long lifespans. Ecology Laboratory, pers. comm.). Freshwater mussels generally have FOR FURTHER INFORMATION CONTACT: Dr. Minnows (Cyprinidae) may serve as separate sexes. The age of sexual Michael M. Bentzien at the above hosts for the fat threeridge and Chipola maturity is variable (Gordon and Layzer address, or 904/232–2580, ext. 106. slabshell. 1989), usually requiring from three (Zale The complex life cycle of mussels SUPPLEMENTARY INFORMATION: and Neves 1982) to nine (Smith 1979) increases the probability that weak links Background years, and may be sex dependent (Smith in their life history will preclude 1979). Males expel sperm into the water successful reproduction and recruitment Introduction column, while females draw in the (Neves 1993). Egg formation and The fat threeridge, shinyrayed sperm with the in-current water flow fertilization are critical phases in the life pocketbook, Gulf moccasinshell, (Gordon and Layzer 1989). Spawning history; mussels may fail to form eggs Ochlockonee moccasinshell, oval appears to be temperature dependent (Downing et al. 1989), or have pigtoe, Chipola slabshell, and purple (Zale and Neves 1982, Bruenderman incomplete fertilization (Matteson bankclimber are freshwater mussels of and Neves 1993), but may also be 1948). Fertilization success has been the family Unionidae found only in influenced by stream flow (Hove and shown to be strongly correlated with eastern Gulf Slope streams draining the Neves 1994). Fertilization rates are spatial aggregation, which either Apalachicolan Region, defined as dependent on spatial aggregation of influences the rate of egg formation, streams from the Escambia to the reproductive adults (Downing et al. improves fertilization rates of Suwannee river systems, and occurring 1993). Fertilization takes place inside individuals, or both (Downing et al. in southeast Alabama, southwest the shell; the fertilized eggs develop into 1993). Georgia, and north Florida (Butler larvae called glochidia. After an Status Survey 1989). The Apalachicolan Region is incubation period, mature glochidia are known for its high level of endemicity, expelled into the water column and These seven mussels were considered harboring approximately 30 species of must come into contact with specific to be potential candidates for listing in endemic (found only in the region) species of fish whose gills and fins they 1989 (see Previous Federal Actions mussels (Butler 1989). The Region temporarily parasitize (Gordon and section). The Service requested its drains primarily the Coastal Plain Layzer 1989). former National Fisheries Research Physiographic Province. Only the The shinyrayed pocketbook utilizes Center (now the Florida-Caribbean headwaters of the Flint and largemouth bass (Micropterus Science Center of Biological Resources Chattahoochee rivers, in the salmoides) and spotted bass (M. Division of the U.S. Geological Survey Apalachicola-Chattahoochee-Flint punctulatus) as primary host fishes. The (USGS), subsequently referred to as (ACF) River system, occur above the latter species appears to have been ‘‘Center’’) in Gainesville, Florida, to Fall Line in the Piedmont Physiographic introduced into the ACF River system survey these species in 1991. The Center Province in west-central Georgia. (Lee et al. 1980). The Gulf surveyed for mussels in both the ACF The decline of some of the species moccasinshell utilizes the brown darter (324 sites) and Ochlockonee (77 sites) included in this rule was evident (Etheostoma edwini) and blackbanded river systems from 1991 to 1993. decades ago. The fat threeridge, oval darter (E. nigrofasciata); the sailfin Information gathered during the status pigtoe, Chipola slabshell, and purple shiner (Pteronotropis hypselopterus) survey was summarized by Butler bankclimber were considered rare, but serves as the host fish for the oval pigtoe (1993). Three criteria were used to select locally abundant, in the 1950’s (Clench (O’Brien 1996). Glochidia for the purple status survey sampling sites—(1) to and Turner 1956). The Gulf bankclimber transformed on obtain a thorough and even coverage of moccasinshell, oval pigtoe, and purple mosquitofish (Gambusia holbrooki) and the basins, (2) to survey sites where, bankclimber were recognized in a list of blackbanded darter, but these species based on suitable habitat, there was a rare species in 1970 (Athearn 1970), and were not considered by O’Brien (1996) maximum chance of finding one or the fat threeridge was added to the list to be the primary hosts for this mussel. more of the target species; and (3) to of regionally rare mussels a year later Host fishes for the fat threeridge, resurvey as many of the historical sites (Stansbery 1971a). Ochlockonee moccasinshell, and as possible. The survey was designed to Chipola slabshell are unknown. The estimate species distributions and General Biology lampsiline Ochlockonee moccasinshell population status, not to determine all Freshwater mussel adults are filter- probably uses darters as host fish, as existing populations. feeders, positioning themselves in does its congeners, the Alabama Numerous sites were surveyed in substrates to facilitate siphoning of the moccasinshell (Medionidus every major river in these watersheds. water column for oxygen and food acutissimus) (W.R. Haag, U.S. Forest Every major tributary was also sampled, (Kraemer 1979). Their food includes Service, pers. comm.), Cumberland and generally at least one sample was primarily detritus, plankton, and other moccasinshell (M. conradicus) (Zale and taken on other sizable tributaries in microorganisms (Fuller 1974). Neves 1982), and Gulf moccasinshell these river systems. A total of 183 12666 Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations mainstem, 189 tributary, and 39 eight United States museums with incorrectly assigned to the genera reservoir sites were sampled in the ACF significant mussel holdings. For the Quadrula and Crenodonta by Simpson and Ochlockonee River systems. purposes of the survey, a historical (1914) and Clench and Turner (1956), Additional sites were collected in the collection was any collection made respectively. Subsequent investigators Santa Fe River system (Suwannee River prior to the status survey (before 1991). (e.g., Turgeon et al. 1988) have correctly system; three sites) and in Econfina Of 300 known historical sites for all placed the fat threeridge in the genus Creek (Bay County, Florida; six sites). mussel species from the ACF and Amblema. Highway bridge crossings and boat Ochlockonee River systems, 250 are The fat threeridge was described from ramps were often used to provide direct identifiable to a specific locality, and the Flint River, Macon County, Georgia. access to sampling sites and to sections 108 harbored one or more of the seven This species, endemic to the ACF River of river to be sampled by boat. species. Of the 108 sites with at least system, historically occurred in the The survey technique generally used one of the species, 100 were in the ACF mainstems of the Flint, Apalachicola, was hand-picking or grubbing, which River system and eight in the and lower Chipola rivers (Clench and involves a methodical search of the Ochlockonee River system. The ACF Turner 1956, Butler 1993). Clench and substrate for siphons or partially River system historical sites include the Turner (1956) indicated that this species exposed specimens, trails, or other following—Flint River system—39 sites, was generally rare, but locally abundant. signs. Low-visibility conditions require Chipola River system—31 sites, In the Chipola River system, van der crawling or lying down on the bottom, Chattahoochee River system—20 sites, Schalie (1940) reported 17 specimens and feeling for shells by running fingers and Apalachicola River system—10 from two sites (average of 8.5 per site). through the substrate. SCUBA and/or sites. Additional information on Clench and Turner (1956) documented snorkeling were used at about two- historical mussel populations was ten to 15 mussels per m (0.9 to 1.4 thirds of the study sites, supplemented gathered from the scientific literature, mussels per ft) square over a 200 m (656 by hand-picking in shallow water at unpublished technical reports, and field ft) stretch of Dead Lake (Chipola River) most sites. Over 95 percent of the records and notes of various collectors. shoreline. collection sites were sampled by four or Previously unknown sites of For the status survey, 86 sites were more people, spending an average of occurrence for most of the species were sampled within the historical range of two hours total effort per sampling site. discovered during the status survey in the fat threeridge, including eight of the All habitat types at each site were the ACF and Ochlockonee River 12 (67 percent) known historical sites. sampled for mussels, but efforts focused systems. The Service believes that The fat threeridge was found at six of on habitats likely to support the target historic populations of these mussels the 86 (7 percent) sampled sites, three species. occupied most or all available habitat, each on the Apalachicola and lower The Center surveyed 150 to 250 and that habitat for all seven species has Chipola rivers. Only one of the eight (13 meters (m) (492 to 820 feet (ft)) of a declined. The newly discovered sites, percent) historical sites still had live stream reach at most sites. A primary therefore, represent previously individuals. An average of 6.4 live goal was to collect at each site until unsampled sites. This accounts for the individuals were found per site. No live fat threeridge mussels have there was a high probability that all purple bankclimber being located at been found since 1981 in the Flint species occurring there were found. more sites during the status survey than River; the species is apparently Small streams were surveyed from bank it was known from historically (see extirpated from Georgia. Apparently to bank and were sampled for longer ‘‘Species Accounts’’ below in this common in Dead Lake in 1967 (H.G. linear distances than large rivers. Shoals section). Since mussels are long-lived, with high habitat complexity were Lee, amateur malacologist, pers. these recently discovered populations surveyed more intensively and over comm.), this species was not found live have probably existed for at least the longer distances than slackwater sites there in 1974 (W.H. McCullagh, amateur past century, as only a few generations with little variation in substrate. Sites malacologist, pers. comm.), nor during would have elapsed from that time until where mussels were uncommon or the status survey. the present. where only a few common species were The smallest live fat threeridge found present were sampled for a shorter time Species Accounts during the survey was 43 mm (1.7 in) and distance. Information important for long. Richardson and Yokley (1996) Fat Threeridge—Amblema Neisleri (Lea, establishing baseline mussel population found evidence of juvenile fat threeridge 1858) status at each site was recorded either at a site in the lower Apalachicola River in the field or during laboratory The fat threeridge is a medium-sized thought to have the best extant analyses, including stream to large, subquadrate, inflated, solid, population of this species (J. Brim Box, characteristics (e.g., width, depth, water and heavy shelled mussel that reaches USGS, pers. comm.), where it was the clarity, substrate), species present, a length of 102 millimeters (mm) (4.0 second most common mussel species number of live and dead specimens per inches (in)). Older, larger individuals encountered. Three fat threeridges species, length of each live mussel, are so inflated that their width under 50 mm (2.0 in) in length were reproductive condition of female approximates their height. The umbos found employing total substratum specimens, and condition of dead are in the anterior quarter of the shell. removal from six 0.25 m (2.7 ft) square shells. Most of these specimens were The dark brown to black shell is quadrats. Richardson and Yokley (1996) retained for voucher material, and strongly sculptured with seven to eight stated that the smallest specimens had temporarily stored at the Center in prominent horizontal parallel ridges. fewer than the five presumed annual Gainesville, Florida. After studies Internally, there are two subequal growth rings that might be indicative of unrelated to the status survey are pseudocardinal teeth in the left valve juveniles. A fresh dead individual conducted, the material will be donated and typically one large and one small measured 24 mm (0.9 in) in length and to the mollusk collection of an tooth in the right valve. The nacre is had two to three growth rings. In 1996, appropriate museum for curation. bluish white to light purplish and very three live specimens ranging from 40 to Over 2,300 historical records for iridescent. The Service considers Unio 50 mm (1.6 to 2.0 in) in length were mussels in the ACF and Ochlockonee neislerii Lea, 1858 to be a synonym of located in the same bed (C.A. O’Brien, River systems were also gathered from Amblema neislerii. This taxon was USGS, pers. comm.). These data Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations 12667 indicate that the fat threeridge is pocketbook were located in the ACF has two stubby pseudocardinal and two experiencing limited recruitment at the River system. Eight of these new arcuate lateral teeth. The right valve has site representing its best known occurrences were from five Flint River one pseudocardinal and one lateral population. tributaries; one each occurred in tooth. Nacre color is smokey purple or tributaries of the Chattahoochee and greenish and slightly iridescent at the Shinyrayed Pocketbook—Lampsilis Chipola rivers (Butler and Brim Box posterior end. The Service recognizes Subangulata (Lea, 1840) 1995, J. Brim Box, USGS, pers. comm.). Unio penicillatus Lea, 1857 and Unio The shinyrayed pocketbook is a The latter two records represent streams kingi Wright, 1900 as synonyms of medium-sized species that reaches where the species had not been Medionidus penicillatus. approximately 85 mm (3.3 in) in length. previously collected. The Flint River The recent taxonomic history of The shell is subelliptical, with broad, system records include one stream Medionidus species in the somewhat inflated umbos and a where the species had never been Apalachicolan Region is complex. In the rounded posterior ridge. The shell is collected (a small tributary of a stream Chipola River system, van der Schalie fairly thin but solid. The surface is where live specimens were found (1940) recorded two species of smooth and shiny, light yellowish during the status survey), and another Medionidus—M. kingi and M. brown with fairly wide, bright emerald stream where it was found during the penicillatus. Clench and Turner (1956) green rays over the entire length of the status survey as a single dead shell; the synonymized M. kingi and two other shell. Older individuals may appear remaining sites are in tributaries where nominal species, the Ochlockonee much darker brown with obscure it was found live during the status moccasinshell and Suwannee raying. Female specimens are more survey. moccasinshell (M. walkeri [Wright, inflated postbasally, whereas males The smallest shinyrayed pocketbook 1897]) under the Gulf moccasinshell, an appear to be more pointed posteriorly. specimen recorded during the status arrangement also followed by Burch Internally, the pseudocardinal teeth are survey in the Ochlockonee River (1975). Johnson (1970) erroneously double and fairly large and erect in the system, possibly an older juvenile, reported both the Gulf moccasinshell left valve, and one large tooth and one measured 41 mm (1.6 in) in length. In and Suwannee moccasinshell from the spatulate tooth in the right valve. The the ACF River system, the three smallest ACF River system and the Suwannee nacre is white, with some individuals specimens, measuring 55 to 57 mm moccasinshell from the Ochlockonee exhibiting a salmon tint in the vicinity (2.17 to 2.24 in) in length, were gravid and Suwannee rivers as well. Johnson of the umbonal cavity. The Service females. In 1995, four live, apparently (1977) recognized the validity of the recognizes Unio subangulatus Lea, 1840 juvenile, specimens from 30 to 40 mm Gulf moccasinshell, Ochlockonee and Unio kirklandianus Wright, 1897 as (1.2 to 1.6 in) in length were located in moccasinshell, and Suwannee synonyms of Lampsilis subangulata. a Flint River tributary (C.A. O’Brien, moccasinshell from Apalachicolan The shinyrayed pocketbook was USGS, pers. comm.). O’Brien (1996) Region streams based on shell described from the Chattahoochee River, sampled the largest known bed of this characters. The validity of the three Columbus, Georgia. Historically, this species for juveniles. An 18 m (59.1 ft) allopatrically distributed Apalachicolan mussel occurred in mainstems and by 8 m (26.2 ft) area had 37 adult Region Medionidus species is also tributaries throughout the ACF River shinyrayed pocketbooks (average of 2.1 recognized by Turgeon et al. (1988). system, and in larger streams of the per m square). Whole substratum The Gulf moccasinshell was described Ochlockonee River system (Clench and removal of 54 0.25 m (2.7 ft) square from three sites in the ACF River system Turner 1956, Butler 1993). Van der quadrats within this bed yielded no in Georgia—the Chattahoochee River Schalie (1940) found this species to be juveniles of this species. The density of near Columbus and near Atlanta, and generally rare, but locally abundant, shinyrayed pocketbooks at the four the Flint River near Albany. The documenting 94 specimens at eight other sites, where quantitative work historical ACF River system distribution Chipola River system sites (average of conducted subsequent to the status included tributaries and mainstems of 11.8 per site). survey yielded specimens, never the Flint, Chattahoochee, and Chipola During the status survey, 380 sites exceeded 0.08 specimens per meter rivers, and the mainstem Apalachicola within the historical range of the square (J. Brim Box, USGS, pers. River. More western localities in the shinyrayed pocketbook were sampled, comm.). Apalachicolan Region included including 28 of 54 (52 percent) known Econfina Creek (Bay County, northwest historical sites. Live individuals were Gulf Moccasinshell—Medionidus Florida), the Choctawhatchee River found at 23 of the sample sites, Penicillatus (Lea, 1857) system, and the Yellow River (Johnson including one site in a Chattahoochee The Gulf moccasinshell is a small 1977; Butler 1989, 1993). Clench and River tributary in Alabama, 13 sites (12 mussel that reaches a length of about 55 Turner (1956) considered this species on tributaries) in the Flint River system, mm (2.2 in), is elongate-elliptical or rare, but locally abundant. Van der one locality in the Chipola River, and rhomboidal and fairly inflated, and has Schalie (1940) reported 166 specimens eight sites (seven mainstem) in the relatively thin valves. The ventral from 11 sites, including 130 from two upper half of the Ochlockonee River margin is nearly straight or slightly sites in the Chipola River system, an system. An average of 2.9 live rounded. The posterior ridge is rounded average of 15.1 per site. individuals were found per site. Live to slightly angled and intersects the end During the status survey, 330 sites individuals were located at six (21 of the shell at the base line. Females within the historic range of the Gulf percent) of the historical sites. This tend to have the posterior point above moccasinshell were sampled, including species has apparently been eliminated the ventral margin and are somewhat 13 of 31 (42 percent) known historical from all but one site in the more inflated. Sculpturing consists of a sites. This species was found at eight Chattahoochee River system in series of thin, radially-oriented sites (two percent), including only one Alabama, and from much of the Chipola plications along the length of the of the historical sites. It was found at River system. posterior slope. The remainder of the seven sites (including one mainstem During unrelated studies subsequent surface is smooth and yellowish to site) in the middle Flint River system, to the completion of the status survey, greenish brown with fine, typically and at one Econfina Creek site. An ten additional sites for the shinyrayed interrupted green rays. The left valve average of 1.4 live individuals was 12668 Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations found per site. All Alabama populations species sometimes numbered in the (Clench and Turner 1956), oval pigtoe of the Gulf moccasinshell appear to be dozens of individuals at sites above populations sometimes numbered in the extirpated, and no specimens were Talquin Reservoir. hundreds (van der Schalie 1940). In the found in the Chipola River system During the status survey, eight sites Chipola River system, van der Schalie during the status survey. The species were sampled within the historic range (1940) reported 470 specimens from 9 has not been collected in the of the Ochlockonee moccasinshell, sites (an average of 52.2 per site). Choctawhatchee River system since the including three of six (50 percent) During the status survey, 410 sites early 1930’s and in the Yellow River known historical sites. Live individuals were sampled within the historic range since 1963 (Williams and Butler 1994). were found at two sites (one specimen of this species, including 20 of 50 (40 Six new sites for the Gulf at each site); one of these was a historic percent) known historical sites. The moccasinshell from tributaries of the site. Another specimen was located in oval pigtoe was found at 24 (6 percent) ACF River system were found 1995 (J. Brim Box, USGS, pers. comm.) of the sample sites, including seven of subsequent to the status survey (Butler at a site previously sampled during the the historic sites, with an average of 5.2 and Brim Box 1995, J. Brim Box, USGS, status survey. Only three live live individuals per site. The species pers. comm.). Three sites were streams individuals are known to have been was found at one mainstem site and from which this species had never been collected since 1974 despite concerted seven tributary sites in the Flint River found (one tributary each in the efforts by numerous investigators; none system, six mainstem Chipola River Chattahoochee, Flint, and Chipola were juveniles. sites, six mainstem sites and one rivers), two were streams (both Flint tributary site in the upper Ochlockonee Oval Pigtoe—Pleurobema Pyriforme River system) where this species was River system, one site in the New River (Lea, 1857) found live during the status survey, and (upper Santa Fe River system), and two one site was a stream in the The oval pigtoe is a small to medium- sites in Econfina Creek. The oval pigtoe Chattahochee River system where a sized species that attains a length of has apparently been extirpated from the single dead shell had been located about 60 mm (2.4 in). The shell is Chattahoochee River system in Alabama during the status survey. suboviform compressed, with a shiny and much of the Chipola River system. Densities of Gulf moccasinshells at smooth epidermis. The periostracum is Subsequently, five new occurrences of two sites where quantitative work was yellowish, chestnut, or dark brown, the oval pigtoe were located in three conducted were under 0.4 specimens rayless, and with distinct growth lines. ACF River system tributaries. One per meter square (J. Brim Box, USGS, The posterior slope is biangulate and occurrence was from a stream in the pers. comm.). All specimens located forms a blunt point on the posterior Chipola River system not previously during and subsequent to the status margin. The umbos are slightly elevated known to have harbored this species. survey were adults; no specimens less above the hingeline. As is typical of the The other four occurrences were in two than 50 mm (2.2 in) were located. genus, no sexual dimorphism is streams (two sites in each stream), that displayed in shell characters. Internally, are tributaries to the Chattahoochee and Ochlockonee Moccasinshell— the pseudocardinal teeth are fairly large, Flint rivers where the species had been Medionidus Simpsonianus Walker, 1905 crenulate, and double in both valves. recorded during the status survey The Ochlockonee moccasinshell is a The lateral teeth are somewhat (Butler and Brim Box 1995; J. Brim Box, small species, generally under 55 mm shortened, arcuate, and double in each USGS, pers. comm.). (2.2 in) in length. It is slightly elongate- valve. Nacre color varies from salmon to Oval pigtoe density at the five new elliptical in outline, the posterior end bluish white and is iridescent sites never exceeded 0.4 specimens per obtusely rounded at the shell’s median posteriorly. Variation in this species has meter square (J. Brim Box, USGS, pers. line and the ventral margin broadly led to the description of various comm.). The smallest individual curved. The posterior ridge is nominal species. The Service currently collected during or subsequent to the moderately angular and covered in its recognizes Unio pyriformis Lea, 1857, status survey was 26 mm (1.0 in) in entire length with well developed, Unio modicus Lea, 1857, Unio bulbosus length, indicating that juveniles were irregular ridges. Sculpture may also Lea, 1857, Unio amabilis Lea, 1865, not present in these collections. extend onto the disk below the ridge. Unio reclusum Wright, 1898, Unio Surface texture is smooth. The color is harperi Wright, 1899, and Pleurobema Chipola Slabshell—Elliptio light brown to yellowish green, with simpsoni Vanatta, 1915 as synonyms of Chipolaensis Walker, 1905 dark green rays formed by a series of Pleurobema pyriforme. The Chipola slabshell is a medium- connected chevrons or undulating lines The oval pigtoe was described from sized species reaching a length of about across the length of the shell. Internal the Chattahoochee River, near 85 mm (3.3 in). The shell is ovate to characters include thin straight lateral Columbus, Georgia. Historically, this subelliptical, somewhat inflated and teeth and compressed pseudocardinal species was one of the most widely with the posterior ridge starting out teeth. There are two laterals and two distributed and common mussels rounded, but flattening to form a pseudocardinals in the left valve and endemic to the Apalachicolan Region. It prominent biangulate margin. The one lateral and one pseudocardinal in occurred throughout the mainstems and surface is smooth and chestnut colored. the right valve. The nacre is bluish several tributaries of both the Flint and Dark brown coloration may appear in white. A summary of the taxonomic Chipola River systems, in the lower the umbonal region and the remaining history of the genus Medionidus follows Chattahoochee River mainstem and surface may exhibit alternating light and the Gulf moccasinshell description several of its tributaries, in the dark bands. The umbos are prominent, above. Apalachicola River mainstem, and in well above the hingeline. Internally, the The Ochlockonee moccasinshell was the upper portion of the Ochlockonee umbonal cavity is rather deep. The described from the Ochlockonee River, River system. The oval pigtoe was also lateral teeth are long, slender, and Calvary, Grady County, Georgia. This known from a single Suwannee River slightly curved; two in the left and one Ochlockonee River system endemic was mainstem site and the confluent Santa in the right valve. The pseudocardinal known historically from the mainstem Fe River system, and in Econfina Creek teeth are compressed and crenulate; two and the Little River (Johnson 1977, (Clench and Turner 1956, Butler 1993). in the left and one in the right valve. Butler 1993). Museum records for this Once a species of localized abundance Nacre color is salmon, becoming more Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations 12669 intense dorsally and somewhat the shell becoming deep purple towards the ACF River system was 76 mm (3.0 iridescent posteriorly. the margin, and very iridescent in) in length, a size that possibly The Chipola slabshell was described posteriorly. The Service recognizes Unio represents a juvenile. Richardson and from the Chipola River, Florida. Clench sloatianus Lea, 1840, Unio Yokley (1996) took six 0.25 meter (2.7 and Turner (1956) restricted the type atromarginatus Lea, 1840, Unio aratus ft) square total substratum removal locality to the Chipola River, 1.6 km (1.0 Conrad, 1849, and Unio plectophorus quadrat samples at a site below Jim mi) north of Marianna, Jackson County, Conrad, 1950 as synonyms of Woodruff Dam in the Apalachicola Florida. This species was considered to Elliptoideus sloatianus. River where the purple bankclimber was be a Chipola River system endemic, Elliptoideus sloatianus was included abundant, being the second most occurring in the mainstem from the in the genus Elliptio until Frierson commonly encountered species. No vicinity of Dead Lake upstream and in (1927) erected the subgenus Elliptoideus specimens smaller than 133 mm (5.2 in) a few of its larger tributaries, all in based on the presence of glochidia in all were found, indicating a lack of Florida (van der Schalie 1940, Clench four gills instead of two gills, a recruitment at this site. and Turner 1956). However, a historical characteristic of the genus Elliptio. record recently brought to light has been Clench and Turner (1956) overlooked Previous Federal Action verified from a small tributary of the the work of Frierson (1927), placing the The fat threeridge, shinyrayed Chattahoochee River in extreme species under Elliptio. Subsequent pocketbook, oval pigtoe, and purple southeast Alabama (Butler 1993). Van investigators (e.g., Turgeon et al. 1988) bankclimber first appeared as category 2 der Schalie (1940) documented 31 have correctly assigned this species to species in the Service’s notices of specimens from six sites in the Chipola the monotypic genus Elliptoideus. review for animal candidates that were River system (an average of 5.2 per site). The purple bankclimber was published on January 6, 1989 (54 FR During the status survey, 33 sites described from the Chattahoochee River 554) and on November 21, 1991 (56 FR within the historical range of this in Georgia. The type locality was 58804). At that time, a category 2 species on the Chipola River were restricted to the Chattahoochee River at species was one that was being sampled, including 12 of 16 (75 percent) Columbus, Georgia, by Clench and considered for possible addition to the known historical sites. Live individuals Turner (1956). In the ACF River system, Federal List of Endangered and were found at five sites (15 percent), the purple bankclimber was historically Threatened Wildlife. Designation of including one historical site. An average found throughout the mainstem and in category 2 species was discontinued in of 3.7 live individuals was found per a few of the largest tributaries in the the February 28, 1996, Federal Register site. Live individuals were located at Flint River system, in the vicinity of notice (61 FR 7596) (see also Issue 103 one of the 12 historic resurveyed sites. Dead Lake on the lower Chipola River in the ‘‘Summary of Comments and Populations from Spring Creek (middle mainstem (although not reported by van Recommendations’’ section). The Chipola River system) and the der Schalie (1940)), and along the Service determined that these four Chattahoochee River system apparently mainstems of the Apalachicola and species plus the Gulf moccasinshell, have been extirpated, with the latter loss Chattahoochee rivers. The species Ochlockonee moccasinshell, and resulting in the extirpation of the occurred in the lower two-thirds of the Chipola slabshell qualified as candidate Chipola slabshell from Alabama. mainstem of the Ochlockonee River, and species at the time of proposal for No live specimens appeared to be in the Little River (Clench and Turner listing. A candidate species is a species juveniles, as the smallest live individual 1956, Butler 1993). for which the Service has sufficient was 47 mm (1.9 in) in length. The During the status survey, 222 sites information to propose it for protection Chipola slabshell has one of the most were sampled within the historic range under the Act. All seven species have restricted ranges of any Apalachicolan of the purple bankclimber, including 14 been recommended for conservation Region mussel. However, it appears to of 27 (53 per cent) known historic sites. status by Williams et al. (1992a) and be more tolerant of soft sediments than Live individuals were found at 41 (18 Williams and Butler (1994). other species included in this rule, has percent) sites, with an average of 54 On November 18, 1993, the Service potentially more habitat available than individuals per site. The purple notified by mail (72 letters) potentially channel-dwelling species, and may co- bankclimber was found at six of the 14 affected Federal and State agencies, occur with more silt-tolerant species in historical sites. The species was found local governments, and interested stream bank habitats with slower at 17 mainstem sites and one tributary individuals that a status review was currents. site on the lower two-thirds of the Flint being conducted for these seven species. River, at five sites in the Apalachicola Ten comments were received. The Purple Bankclimber—Elliptoideus River, and at 18 sites on the Florida Division Office of the Federal Sloatianus (Lea, 1840) Ochlockonee River mainstem, mostly Highway Administration stated that no The purple bankclimber is a large, above Talquin Reservoir. Having been bridge replacement projects were heavy-shelled, strongly sculptured extirpated from the Chipola and currently planned in northwest Florida, mussel reaching lengths of 200 mm (8.0 Chattahoochee rivers, no extant and that any future bridge replacement in). A well-developed posterior ridge populations occur in Alabama. Its range projects were not anticipated to affect extends from the umbos to the posterior in the Flint and Ochlockonee River these species, based on the localized ventral margin of the shell. The systems also has been reduced. and short-term impacts associated with posterior slope and the disk just anterior It is uncertain if purple bankclimber these activities. The Federal Energy to the posterior ridge are sculptured by populations are successfully recruiting Regulatory Commission stated that they several irregular ridges that vary greatly young. Two specimens <70 mm (2.8 in) license twelve hydroelectric in development. Umbos are low, in length were collected from the developments in the study area, and extending just above the dorsal margin Ochlockonee River during the survey; that issues concerning these species of the shell. Internally, there is one they were 53 mm (2.1 in) and 59 mm should be coordinated with the Office of pseudocardinal tooth in the right valve (2.3 in) in length. Based upon the large Hydropower Licensing. The Fayette and two in the left valve. The lateral size attained by this species, both were County, Georgia, Board of teeth are very thick and slightly curved. possibly juveniles. The smallest Commissioners expressed concern with Nacre color is whitish near the center of specimen found during the survey in the Service’s belief that impoundments 12670 Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations had played such a major role in the information that might contribute to the on January 24, 1995; Albany, Georgia on demise of these species. The Alachua development of a final rule. Appropriate January 25, 1995; and Columbus, County, Florida, Environmental Federal and State agencies, county Georgia, on January 26, 1995. Protection Department indicated that governments, scientific organizations, In a Federal Register notice dated none of the seven species were known and interested parties were contacted by April 24, 1995 (60 FR 20072), the or suspected to occur in that county. letter dated August 18, 1994, and were Service reopened the comment period The Florida Game and Fresh Water Fish requested to comment. Legal notices on this proposal until May 5, 1995, to Commission expressed concern with were published in the following allow for consideration of numerous how their plan to dredge the mouths of newspapers—the Albany Herald, comments received after the previous several silted in streams along the Albany, Georgia, on August 20, 1994; deadline (February 10, 1995) and to Apalachicola River to improve access the Atlanta Journal-Constitution, provide an opportunity for further for striped bass (Morone saxatilis) might Atlanta, Georgia, on August 21, 1994; comment. Legal notices were published affect these mussels. The Georgia the Columbus Ledger-Enquirer, in the following newspapers—the Department of Natural Resources had Columbus, Georgia, on August 21, 1994; Albany Herald, Albany, Georgia on questions concerning the distribution of the Macon Telegraph, Macon, Georgia, April 21, 1995; The Atlanta Journal- these mussels, and sent a copy of on August 20, 1994; the Thomasville Constitution, Atlanta, Georgia on April regulations addressing the commercial Times-Enterprise, Thomasville, Georgia, 24, 1995; the Columbus Ledger- harvest of mussels in Georgia. The on August 19, 1994; The Gainesville Enquirer, Columbus, Georgia on April Florida Natural Areas Inventory Sun, Gainesville, Florida, on August 18, 21, 1995; the Dothan Eagle, Dothan, supported Federal listing of these 1994; the Jackson County Floridan, Alabama on April 26, 1995; the species, and indicated that a portion of Marianna, Florida, on August 21, 1994; Montgomery Advertiser, Montgomery, the Econfina Creek watershed where the the Tallahassee Democrat, Tallahassee, Alabama on April 22, 1995; the Gulf moccasinshell and oval pigtoe Florida, on August 21, 1994; and The Tallahassee Democrat, Tallahassee, occur is on a list for land purchase by News-Herald, Panama City, Florida, on Florida on April 23, 1995; the Jackson the State of Florida. Three individuals August 22, 1994. County Floridan, Marianna, Florida on with knowledge of freshwater mussels In response to twelve formal requests April 26, 1995; and the Fayette News, supported Federal listing of these during the first public comment period, Fayetteville, Georgia on April 26, 1995. species. the Service scheduled five public During the April 10, 1995, to April 26, The processing of this final rule hearings in the three-State area within 1996, listing moratorium, studies conforms with the Service’s final listing the historical range of these seven involving some of these proposed priority guidance published in the species. Prior to the hearings, the species were conducted in the ACF Federal Register on December 5, 1996 Service held five public informational River system. To accept this new (61 FR 64475). The guidance clarifies meetings at the same sites as the public information, the Service published a the order in which the Service will hearings. A notice of public meetings, notice in the Federal Register (61 FR process rulemakings during fiscal year public hearings, and reopening of the 36020) on July 9, 1996, reopening the 1997. The guidance calls for giving comment period was published in the comment period until July 26, 1996. highest priority to handling emergency Federal Register on December 12, 1994 Legal notices were published in the situations (Tier 1) and second highest (59 FR 63987), and in legal notices in following newspapers—the Albany priority (Tier 2) to resolving the listing the following newspapers—the Albany Herald, Albany, Georgia on July 14, status of the outstanding proposed Herald, Albany, Georgia on January 6, 1996; The Atlanta Journal-Constitution, listings. This rule falls under Tier 2. 1995; The Atlanta Journal-Constitution, Atlanta, Georgia on July 17, 1996; the Presently, there are no pending Tier 1 Atlanta, Georgia on January 8, 1995; the Columbus Ledger-Enquirer, Columbus, actions in Region 4 and this is the Columbus Ledger-Enquirer, Columbus, Georgia on July 14, 1996; the Dothan Region’s last outstanding Tier 2 action. Georgia on January 5, 1995; the Dothan Eagle, Dothan, Alabama on July 14, Additionally, the guidance states that Eagle, Dothan, Alabama on January 7, 1996; the Montgomery Advertiser, ‘‘effective April 1, 1997, the Service will 1995; the Montgomery Advertiser, Montgomery, Alabama on July 14, 1996; concurrently undertake all of the Montgomery, Alabama on January 5, the Tallahassee Democrat, Tallahassee, activities presently included in Tiers 1, 1995; the Tallahassee Democrat, Florida on July 14, 1996; the Jackson 2, and 3’’ (61 FR 64480). In a Federal Tallahassee, Florida on January 6, 1995; County Floridan, Marianna, Florida on Register notice published on October the Jackson County Floridan, Marianna, July 14, 1996; and the Fayette News, 23, 1997 (62 FR 55628), the guidance Florida on January 8, 1995; and the Fayetteville, Georgia on July 14, 1996. was extended beyond FY 1997 until Fayette News, Fayetteville, Georgia, on The Service received hundreds of such time as new guidance is published. January 11, 1995. The comment period written comments and many oral In the development of this final rule, for the proposal closed on February 10, statements presented at the public the Service has conducted an internal 1995. hearings and received during the review of a draft of this rule and other Public meetings were held at the comment periods. All pertinent Service-generated information. Based on Fayette County High School in comments have been considered in the this review, the Service has determined Fayetteville, Georgia on January 5, 1995; formulation of this final rule. The that there is no new information that at Chipola Junior College in Marianna, proposed listings were supported by the would substantively affect these listing Florida on January 9, 1995; at the Opera U.S. Forest Service, the Environmental decisions and that additional public House in Dothan, Alabama on January Protection Agency (EPA), and the States comment is not warranted. 10, 1995; at the Albany Civic Center in of Alabama (Department of Albany, Georgia on January 11, 1995; Conservation and Natural Resources) Summary of Comments and and at the Convention and Trade Center and Florida (Department of Recommendations in Columbus, Georgia on January 12, Environmental Protection and Game In the August 3, 1994, proposed rule 1995. Public hearings were held at the and Fresh Water Fish Commission (59 FR 39524), and through associated same facilities in Fayetteville, Georgia [FGFWFC]). The congressional notifications, all interested parties were on January 19, 1995; Dothan, Alabama delegations of the three States opposed requested to submit factual reports and on January 23, 1995; Marianna, Florida the proposed listings. The following is Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations 12671 a summary of the comments, concerns, sites had been visited more than once by lower Apalachicola River, but no and questions (referred to as ‘‘Issues’’ other researchers or collectors prior to evidence of recruitment of the purple for the purposes of this summary) and the status survey. If evidence indicated bankclimber below Jim Woodruff Dam the Service’s response to each. the species had disappeared from a on the same river. These two species Comments of similar content have been historical site, and there was little were both common and represented the grouped together. probability of currently finding it, second most abundant species at their Issue 1: Numerous commenters survey efforts were not expended there. respective sites. The fat threeridge thought that the status survey was The Service believes the newly population sampled is the largest insufficient to make listing discovered sites do not represent newly known (J. Brim Box, USGS, pers. determinations for these seven species. colonized sites, but sites that have comm.). These data indicate that the fat Issues of concern included sampling existed historically but have not been threeridge is experiencing limited methodologies, specimens collected, previously sampled by collectors (see recruitment, but that there is no sites sampled, interpretation of ‘‘Status Survey’’ under Background). evidence of recruitment in the purple historical data, whether sampling for The fat threeridge, shinyrayed bankclimber at these sites. juveniles had been adequate, and pocketbook, Gulf moccasinshell, and Brim Box and Dorazio (in press) took evidence of recent reproduction and oval pigtoe were historically considered 2,867 substrate core samples recruitment. Other issues raised rare, but widespread and locally (representing a composite 4.23 m (45.5 included the need for quantitative abundant (Clench and Turner 1956). ft) square) for mussels at 30 sites in the sampling, the percentage of historical Mussel populations were decimated in ACF system. No specimens of any of the sites sampled, how historical sites were the Chattahoochee River in the vicinity 7 species in this rule were located in the selected for sampling, the evidence for of Columbus, Georgia, by the early part 2,867 core samples, although juveniles the decline of these species, whether of this century (Clench and Turner of a few common species were found. newly discovered sites represented new 1956). The river-dependent mussel Brim Box and Dorazio (in press) also colonization by these mussels, and the species along the entire Chattahoochee took 2,867 0.25 m (2.7 ft) square quadrat reproductive viability of remaining River mainstem now appear to be samples, without total substratum populations. extirpated (Butler 1993). removal, for mussels. No juveniles of Response: Explanations of sampling Determination of sexual maturity in the seven species were found. methodology, specimens collected, sites these species would require sectioning Richardson and Yokley (1996) stated sampled, and analysis of historical data to locate mature gametes; determining that their work demonstrated that have been included under ‘‘Status age would require sectioning the shells unequivocal evidence of recruitment Survey’’ and ‘‘Species Accounts’’ in the (Neves and Moyer 1988); this was not can be found with minimal sampling Background section. Other issues within the scope or intent of the status effort. However, most literature on this associated with the status survey are survey. The Service considered shells to subject demonstrates that the collection discussed below. represent juveniles if they were less of juveniles is a low probability event Quantitative sampling is not essential than one-quarter of the maximum size (Kat 1982, Neves and Widlak 1987, to determine the status of rare riverine for each species. Based on the adult Stansbery 1995). Quadrat sampling has mussel species (Miller and Payne 1988). sizes typical of these seven mussel consistently been determined to be Mussel populations are often distributed species, very few juvenile specimens inadequate for rare species (Neves et al. non-randomly (Downing and Downing were located during the status survey. 1980, Kovalak et al. 1986, Neves and 1992). Even where habitats appear to be While substrate samples were not taken, Odum 1989). The extreme patchiness of uniform, mussels tend to be distributed the survey biologists located thousands mussel distributions makes quantitative unevenly (Downing 1991). For these of smaller species of bivalves and snails. surveys expensive, time consuming, and reasons, random transect-type These included the ubiquitous Asian not the best method to determine the quantitative sampling is less efficient clam (Corbicula fluminea), pleurocerid population status of rare species (Miller than choosing sites based on criteria (Elimia spp.) and other snails, and the and Payne 1988). The large number of such as available habitat (G.L. Warren, iridescent lilliput (Toxolasma paulus), a substratum samples necessary to FGFWFC, in litt. 1995). mussel species rarely exceeding 32 mm confirm recent recruitment is also The Service compiled 300 historical (1.25 in) in total length. The Service disruptive to the stable benthic habitat site records from the ACF and believes that if significant recruitment essential to these and other riverine Ochlockonee River systems; 108 of these was occurring in the seven species, species (A.E. Bogan, North Carolina sites had records of one or more of these more juvenile and small shells would State Museum, pers. comm.). proposed species. Research into have been located. Issue 2: Several commenters said that historical mussel collections since the Juveniles were also represented in the author of the proposed rule stated in status survey was completed has some museum collections. Specimens of a published paper that major portions of yielded additional historical sites not purple bankclimber as small as 26 mm the Apalachicola and Ochlockonee reported in Butler (1993). The (1.0 in) in length were represented in rivers were ‘‘virtually unsurveyed.’’ percentage of historical sites in the ACF museum collections while the smallest Response: What that statement and Ochlockonee River systems specimen located during the status referred to was that few historical resurveyed for the seven species during survey was 53 mm (2.1 in). The sampling sites existed on the the status survey ranged from 40 to 75 occurrence of juvenile specimens in Apalachicola and lower Ochlockonee percent, while the percentages of museum collections substantiated rivers at that time (Butler 1989). resurveyed historical sites in the ACF population viability and indicated Subsequent surveys on the Apalachicola and Ochlockonee River systems that recent reproduction at the time the (35 sites) and Ochlockonee River (24 still supported live specimens of the historical collection was made. sites) mainstems have provided seven species ranged from eight to 43 Richardson and Yokley (1996) adequate information to evaluate the percent. Detailed analyses of these data employed total substratum removal of status of the species considered in this are presented under ‘‘Status Survey’’ six 0.25 m (2.7 ft) quadrats at each of rule. and ‘‘Species Accounts’’ in the three sites. They found three juvenile Issue 3: A few respondents asserted ‘‘Background’’ section. Many historical individuals of the fat threeridge in the that comparing historical survey sites 12672 Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations with status survey sites is difficult Lake (Chipola River). The fat threeridge reach of river permanently reduced because of differing collection apparently disappeared over 20 years available riverine habitat for mussels. techniques and the dynamic nature of ago in Dead Lake and was not found live During the status survey, 39 reservoir streams (what was suitable habitat there during the status survey. Except sites were surveyed; none of the seven decades ago could now be very for the purple bankclimber, which is species were found in permanently unsuitable due to various factors). One abundant at a few sites, these species impounded river reaches. None of these commenter urged the Service to use are now rare range-wide and are not species are known to successfully collection methods employed by early abundant at any known sites (see reproduce and recruit under collectors to thoroughly sample streams. ‘‘Species Accounts’’ in the impoundment conditions. The reference Response: The Service agrees that ‘‘Background’’ section). to the purple bankclimber’s tolerance of there may have been changes in habitat Issue 6: Two respondents stated that impounded conditions was based on a suitability over time. To compensate for Federal listing of the purple mussel relocation project funded by the this factor, Center biologists surveyed bankclimber was not warranted because U.S. Army Corps of Engineers (Corps). upstream and downstream of historical the species was abundant at some sites Purple bankclimbers from the sites. While streams are dynamic, the in the lower Flint and upper Apalachicola River survived twelve proportions of riffle, run, and pool Ochlockonee rivers. One of these months in laboratory tanks at the USGS habitats remain fairly constant. Based individuals further stated that he was research facility in Gainesville, Florida on human influences over the past two confident that juveniles of this species (Hamilton et al. 1996). However, the centuries, the Service believes that were common. mussels were maintained in flow- available habitat for these mussels has Response: The purple bankclimber is through tanks with currents. The diminished significantly (see Factor A the most abundant of the seven mussels; experiment does not indicate that the in the ‘‘Summary of Factors Affecting however, no additional information on purple bankclimber can survive and the Species’’ section). purple bankclimber abundance or reproduce under impounded Issue 4: One malacologist (mussel recruitment was provided to the Service conditions. expert) asked if it would be possible to by these commenters. Recent sampling Issue 9: Two commenters questioned time-code the map symbols in the status efforts on the Apalachicola River the expertise of the Center biologists survey report so that the distribution (Richardson and Yokley 1996) located who carried out the status survey. found in this study could be only large individuals, indicating a lack Response: The project leader of the distinguished from that of earlier of recruitment in this species. status survey has 20 years experience collections. Issue 7: One commenter indicated with mussel research and surveys. The Response: The distributional data that the Gulf moccasinshell still exists at field leader has an M.S. degree in could be time-coded; however, time- several sites in the Chipola River aquatic sciences and seven years field coding collections was not essential to system. experience in aquatic biology. Field determine the status of the seven Response: Van der Schalie (1940) biologists, with one exception, had mussels. reported 166 Gulf moccasinshells taken education in aquatic biology ranging Issue 5: Two malacologists suggested from eleven sites (an average of 15 from the B.S to Ph.D. level. Two that some of these species have always specimens per site) in the Chipola River scientists associated with the project been rare according to the literature, and system, but none were located during have published scientific papers on that population declines could not be the status survey. The Service received mussel surveys and endangered species. proven. One respondent questioned information on a recently discovered The Service believes that all individuals how many of the species existed population in Baker Creek, in the involved in the survey were well historically compared to now. Chipola River system, after publication qualified. Response: Van der Schalie (1940) of the proposal (see ‘‘Species Accounts’’ Issue 10: One commenter questioned gathered data on Chipola River mussels in the ‘‘Background’’ section), but the the adequacy of the sampling done by from collections taken between 1915 to commenter provided no specific the status survey biologists, noting that 1918 and included actual numbers of location or other information. various status survey field notes (e.g., mussels from various sites in the Issue 8: Several commenters the water was too cold, too turbid, or too drainage. A comparison of this questioned the Service’s statements deep) indicated that sampling was historical data with the status survey regarding impoundments, including inadequate and that portions of the field results indicates a significant reduction status survey efforts in impoundments, data should be discarded. in the numbers of at least two species impact of impoundments upon these Response: The survey biologists in the Chipola River. Historically, 470 species, and the purple bankclimber’s employed the most appropriate oval pigtoe specimens were collected tolerance of impoundments. sampling techniques based upon the from nine sites (an average of 52 per Response: Much riverine habitat in habitat conditions present at each site. site) in the Chipola River versus 35 the ACF system has been converted to When high water precluded sampling, specimens collected from six sites (an slack-water impoundments, particularly sites were usually revisited in lower average of six per site) during the status in the Chattahoochee River; however, water conditions to sample. The Service survey. Historically, 166 specimens of verifiable pre-impoundment records of believes that the information gathered the Gulf moccasinshell were known these species are uncommon (see Factor during field work is reliable and taken from eleven sites (an average of 15 A in the ‘‘Summary of Factors Affecting supports the determinations made in per site) versus no specimens collected the Species’’ section). Museum records this rule. in the status survey. confirm that some of the Ochlockonee Issue 11: One commenter assumed Clench and Turner (1956) indicated River mussel fauna was inundated and that when the survey biologists checked that some species (e.g., the fat threeridge lost at the upper end of Talquin a mussel for the presence of mature and oval pigtoe) were rare and only Reservoir. Many historical collections glochidia the mussel was stressed or locally abundant. They documented 10 came from the Chattahoochee River in even killed. Another respondent to 15 specimens/meter (0.9 to 1.4 the vicinity of Columbus, Georgia. questioned the Service’s recording of specimens/ft) square of fat threeridge Although exact locality data is generally laboratory data, noting that an entire over a 200 m (656 ft) stretch of Dead lacking, several impoundments in this collection of over one hundred Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations 12673 individuals of a common species was believes that mussel populations in Response: As discussed under comprised of all females. such areas were adequately sampled. ‘‘Reproductive Biology’’ in the Response: During the status survey, Issue 14: One commenter stated that ‘‘Background’’ section, the fish hosts for some voucher mussels were preserved $27,000 was not adequate to conduct some of these species are not currently and brought to the laboratory for the status survey for the seven proposed known. Without specific host fish analysis, including inspection for mussels. information, it would be premature to glochidia. Most of the specimens were Response: The Service’s Jacksonville, spend considerable efforts and funding returned unharmed to the substrate from Florida, Field Office provided $27,000 on fish sampling. Population and which they were collected. The species in initial funding and $12,000 during distribution information of potential referred to by the respondent as the survey. Total expenditures for the host fish is not necessary to justify consisting of only females were status survey were over $110,000. The listing these species. members of the genus Elliptio. This Service believes the status survey was Loss or depletion of fish host genus does not exhibit obvious external adequate to determine the status of populations may be a primary factor in differences between the sexes; glochidia these species. declines of some of the seven mussels. must either be present or gonadal Issue 15: Various commenters were A loss of riverine habitat has probably tissues sectioned to determine sex. concerned that the scientific data also affected fish populations (see Laboratory notes on this collection associated with the status survey were Factor A in the ‘‘Summary of Factors stated that glochidia were not present not subjected to proper peer review. Affecting the Species’’ section). (or ‘‘NP’’ on the data sheets) for any Response: The information supporting If some of these seven mussel species individual. The commenter apparently these determinations was extensively are ‘‘functionally extinct,’’ recovery may misconstrued ‘‘NP’’ as meaning ‘‘female, peer reviewed according to Service still be possible by restoration of required fish host populations to the glochidia not present.’’ Although their policy (see paragraph following the ecosystem. Regardless of the sex could not be determined, it is likely Service’s response to Issue 107 in the environmental factors responsible for that both sexes were represented in the ‘‘Summary of Comments and the decline of these mussels, if one or sample. Recommendations’’ section for a Issue 12: Some respondents more of the listing criteria are met, discussion of peer review). contended that the Service had not section 4 of the Act requires that the Issue 16: Several respondents stated sampled the Escambia, Yellow, and species be listed. that any decision to list these species Choctawhatchee rivers, where there Issue 19: One commenter was not should be deferred until data is were historical records of two of these convinced that mussels were important, species. available on habitat requirements, fish while numerous malacologists and other Response: There is one historical hosts, and threats to the mussels and commenters stated that mussels serve as record of the Gulf moccasinshell in the their host fish. excellent water quality indicators and Yellow River (1963) and four records Response: Although such data will be barometers of aquatic ecosystem health. from the Choctawhatchee River in the important in recovery for these species, Response: Section 2(a) of the Act 1930’s. The Service examined over 30 they are not required under the listing recognizes that species have intrinsic collections taken from these watersheds factors under section 4(a) of the Act. To values (i.e., aesthetic, ecological, over the past few decades. The Gulf delay these listings until such data educational, historical, recreational, and moccasinshell did not occur in any of become available might preclude the scientific) to the nation, and the section these collections. The Service believes species from being listed until recovery 4 listing criteria do not require other this species is extirpated from the becomes less likely or extinction occurs. justifications. However, mussels are of Yellow and Choctawhatchee River Issue 17: As gravid specimens were demonstrable value to man. Their systems. sometimes documented, some longevity, relative immobility, and filter Clench and Turner (1956) confused commenters questioned the Service’s feeding habits make them among the the shinyrayed pocketbook with the use of the term ‘‘lack of reproductive best available indicators of southern sandshell (Lampsilis australis) viability’’ in the proposed rule. environmental quality in aquatic and erroneously stated that the Response: In the proposed rule, the systems. Mussels are highly susceptible shinyrayed pocketbook’s range included Service stated that there was little to sedimentation and pollutants and the Choctawhatchee River. Johnson evidence to suggest that populations of provide an early warning of the (1970), Heard (1979), and Williams and the seven mussel species were deterioration of water and habitat Butler (1994) clarified the range of the reproductively viable. This statement quality. They accumulate heavy metals shinyrayed pocketbook as comprising was based on the fact that no known and other contaminants in their tissues only the ACF and Ochlockonee River juveniles were collected during the and shells, serving as effective test systems. There are no records of any of status survey. In this final rule, the organisms for contaminants studies. the seven species from the Escambia Service has used the phrase ‘‘lack of Native Americans and early settlers River system. Collections made by the recruitment’’ in its discussions of fed extensively on mussels, as shown by Center between 1993 and 1995 in this mussel reproductive status. This term the large deposits of shell material in drainage corroborate this information. more accurately defines the current middens (Parmalee et al. 1982). In the Issue 13: One respondent commented status of these mussels. first half of this century, mussels that the Service’s diving regulations Issue 18: Several commenters thought supported a large pearl button industry precluded divers from collecting in that the Service had failed to determine in the United States (McGregor and navigable river channels, thus making it potential host fish status, contending Gordon 1992). The cultured pearl impossible to assess mussel populations that missing hosts may be the primary industry harvests thousands of tons of there. cause of their decline. Two shell from eastern rivers (Baker 1993), Response: Service diving regulations malacologists stated that if their fish and cultured pearls are a multi-billion do not preclude sampling in navigable hosts were gone, the mussels were dollar global industry. Mussels are channels. Many dives using SCUBA ‘‘functionally extinct’’; a third asked important organisms for biological were made in navigable channels during that if this were so, why spend time and studies, particularly because of their the status survey, and the Service effort listing them? diverse methods of attracting host fish. 12674 Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations

Mussels serve an important ecological created by Chattahoochee River danger of becoming endangered function by filtering excess nutrients impoundments. throughout all or a significant portion of from the water, improving water clarity Response: There is no evidence that its range within the foreseeable future. so sunlight may promote rooted aquatic any of these seven mussels can The decision to propose a species as vegetation growth, thereby increasing successfully reproduce and recruit endangered or threatened is based solely habitat complexity and species under impoundment conditions. Their on the best scientific and commercial diversity. Several vertebrate species, habitat requirements generally consist of data available after conducting a review including mammals, birds, turtles, and stable substrates, usually gravel, and of the status of the species. For the fish feed regularly on mussels (Fuller other rocky materials in stream channels application of these definitions to the 1974). Their shells provide substrate with currents. Habitat conditions seven mussels in general, and the diversity and a place for many types of created in impounded rivers consist of Chipola slabshell in particular, see invertebrates to colonize. This function softer sediments (i.e., silt, mud, sand) ‘‘Summary of Factors Affecting the is particularly important in homogenous and minimal currents (except at Species’’ and ‘‘Species Accounts,’’ sandy coastal plain rivers where hard reservoir heads). Impoundments also respectively. surfaces are rare. change other physical and chemical Issue 27: One commenter stated that Issue 20: Two malacologists characteristics of rivers (see Factor A in these seven species were imperiled in questioned the Service’s statements the ‘‘Summary of Factors Affecting the 1970, and if the species are still extant, regarding the impacts of various human Species’’ section). these listings are long overdue. activities on the mussels, whereas other Issue 24: Numerous commenters Response: The Service believes that malacologists thought that their maintained that the results of a Corps- the status survey was essential to imperilment was easily documented sponsored study on mussel determine the current status of these given the extensive available literature. translocation were relevant to the species before proposing them for Others questioned the use of personal proposed listings, and that the comment listing. The Service carries out status communications and subjective terms period should have been extended until surveys and listing actions, subject to a (e.g., maybe, unknown) in the proposed study results were available for public priority system published in the Federal rule and at public meetings. scrutiny. Register on September 21, 1983 (48 FR Response: The Corps investigated the 43098), and contingent on the Response: Additional references feasibility of translocating four mussel availability of funding, personnel, and documenting Service conclusions have species, including the purple supportive information. been added in this final rule (see bankclimber, in the Apalachicola River Issue 28: Several commenters thought ‘‘Background’’ and ‘‘Summary of Factors below Jim Woodruff Dam (Hamilton et that the Service had overstated potential Affecting the Species’’ sections). The al. 1996). This study will not provide commercial utilization and take by Service believes it appropriate to additional information on the status of biological supply companies of two consider reliable unpublished reports, these species and does not justify species, that Georgia harvest regulations non-literature documentation, and further extension of the comment aiding in conservation had been personal communications with experts period. understated, and that mussel in making listing determinations. Issue 25: Several respondents stated identification training courses were Issue 21: Several commenters thought that the Service cannot prove which, if needed. that natural factors (e.g., floods) and not any, human activities actually affect Response: Much of the commercial just the factors of human origin, should mussels. Conversely, a few shell harvest in the southeast now takes be considered in the species’ malacologists stated that determining place in west Tennessee and north imperilment. the direct relationship of these impacts Alabama. Although shells from the ACF Response: Natural factors were would be a waste of research time and River system are of poor quality, some considered in terms of threats to these taxpayer dollars. have been included in shell shipments species (see Factors C and E in the Response: Although the precise role (J. Brim Box, USGS, pers. comm.). ‘‘Summary of Factors Affecting the of the factors causing the decline of Demand for shell in recent years has Species’’ section). these species will never be known, there pushed prices high enough that Issue 22: Two commenters questioned is information available on how human collectors have searched widely for the Service’s statement concerning lack activities affect these and other species unexploited shellbeds. The fat of adequate flushing on the of mussels (see ‘‘Background’’ section threeridge and purple bankclimber are Ochlockonee River to rid the channel of and Factor A in the ‘‘Summary of so similar to the more common silt and detritus below Talquin Factors Affecting the Species’’ section). threeridge and washboard (Megalonaias Reservoir. Issue 26: A few malacologists nervosa) that take is a potential Response: One survey site in the questioned the rationale for problem. Training and the development Ochlockonee River below Talquin distinguishing between endangered and of educational materials will be Reservoir had silt and detritus deposits threatened; one of them criticized the considered as tasks when the recovery extending from bank to bank. Under lack of criteria for making such plan is prepared for these species. normal conditions, these materials are distinctions. One malacologist The Service agrees that the practice of confined to slackwater areas, where they wondered how the Service determined dissecting mussels in introductory settle out in low or no-flow conditions. that the narrowly distributed Chipola laboratory courses is no longer Low flow releases from Talquin slabshell was threatened and not widespread. However, large species, Reservoir may be contributing to this endangered. They also wondered at such as the fat threeridge and purple situation. what point information was sufficient to bankclimber, may still be collected for Issue 23: One commenter stated that list a species. this purpose (see factor B under these species’ lack of reservoir tolerance Response: The Act defines an ‘‘Summary of Factors Affecting the may be incorrect, and that it was endangered species as a species Species’’). possible that mussels had not had threatened with extinction throughout Regulation of commercial harvest in enough time to reestablish themselves all or a significant portion of its range, Georgia has changed since the proposed in the newly created benthic habitat and a threatened species as a species in rule was drafted; this has been Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations 12675 addressed in the final rule (see Factor D a century. All meet the Act’s definition references to these factors should be in the ‘‘Summary of Factors Affecting of ‘‘species.’’ deleted. the Species’’ section for discussion of Issue 33: One commenter wanted to Response: Factor C (‘‘Disease or State regulations affecting these know why one mussel species Predation’’) in the ‘‘Summary of Factors species). addressed in the status survey report Affecting the Species’’ section notes that Issue 29: One commenter thought it was omitted from the proposed rule. there is no specific information was inappropriate for Service staff to Response: The status survey included available on how disease and predation recommend that no mussels should be the round washboard (Megalonaias affect these mussels. harvested from the ACF and boykiniana). In December 1993, the Issue 55: One commenter believed Ochlockonee River systems when some Service learned of molecular genetics that mussels were more common than of the seven species were abundant. studies (Mulvey et al. in press) indicated in the proposed rule, because Response: Although some of these indicating that the round washboard hundreds, if not thousands, of mussels species occur in large numbers at a few might be conspecific with the are eaten by muskrats in the vicinity of sites, the Service believes the current widespread and common washboard. his property on the Chattahoochee status of the species does not justify a Based on this taxonomic uncertainty, River. harvest. this species was not proposed for Response: No populations of these Issue 30: One commenter stated that listing. The same study, however, seven species currently occur in the much field data is gathered by amateurs, confirmed that the fat threeridge Chattahoochee River. The mussels in and the Service should recognize the (Amblema neisleri) was a distinct question may be the Asian clam value of this information. Two species from the threeridge (A. plicata). (Corbicula fluminea), a well-known malacologists thought that we Issue 34: One commenter suggested food of muskrats, or reservoir-tolerant overestimated the number of shell clubs that mussel populations in the relatively native mussels. Issue 56: One commenter questioned and amateurs, and accordingly pristine, undisturbed Econfina Creek the relationship between mussel overstated their threat to these species should be thriving because conditions populations and habitat quality. from collecting. for mussels are optimal. Response: Many mussels require Response: The Service acknowledges Response: Econfina Creek retains high water free from excessive levels of the significant role amateur water quality, but has been altered by sediments and contaminants (Fuller malacologists have played in the Deer Point Reservoir on the lower 1974, Havlik and Marking 1987). As development of our current knowledge portion of the creek. Although Gulf benthic inhabitants, they are readily of freshwater mussels. Most early moccasinshell and oval pigtoe affected by sedimentation, and as filter mussel collections, including most of populations survive in this stream, the feeders, they are highly susceptible to the type material used to describe these populations appear to be small. Other various contaminants (see Factor A in seven species, were collected by factors may explain why these two the ‘‘Summary of Factors Affecting the amateur naturalists. Amateurs continue species occur in small numbers. Species’’ section). to make important contributions to the Econfina Creek represents the western- Issue 57: Two malacologists knowledge of mussels. The Service most stream within the historical range questioned these mussels’ decline when agrees that the potential threat from of the oval pigtoe, and the Gulf other species in the same habitat had shell club collectors is minimal (see moccasinshell’s western-most extant viable populations. Another commenter Factor C in the ‘‘Summary of Factors population. Peripheral populations in a thought the Service assumed that all Affecting the Species’’ section). species’ range are often small and seven mussels had similar reproductive Issue 31: Two malacologists scattered. characteristics. commented that the Service may have Issue 53: One malacologist stated that Response: Species occurring in the taken an alarmist view with the Clench and Turner’s (1956) survey of same habitat typically have differences proposal. One malacologist believed the Apalachicolan Region streams referred in life histories or ecological Service was proposing to list aquatic to the mussel fauna as being requirements (e.g., in the case of snails that were abundant and depauperate, whereas the Service mussels, different host fishes) that unthreatened, and doubted the data claimed that the region was well known permit them to coexist. These species used to support the listing of the for its high level of endemicity. would not be expected to respond in the mussels. Response: Clench and Turner (1956) same way to ecological stress. The Response: Based on the best available stated ‘‘* * * [the mussel] fauna of [the specific reproductive biologies of the scientific and commercial data and peer Apalachicolan Region] has been derived seven mussels is largely unknown, but review, the Service believes that listing from the west, is depauperate (not rich would not be expected to be the same. under the Act is appropriate for these in species), and must be fairly old.’’ Issue 58: One commenter thought species (see ‘‘Summary of Factors When compared to adjacent drainages to these mussels were always rare, and Affecting the Species’’ section). the west (e.g., Mobile Basin) and north thus served a limited ecosystem Issue 32: A few respondents stated (e.g., Tennessee River system), the fauna function, and further stated that the that the taxonomy of these species is relatively low in species diversity. Asian clam could fill their niche, thus deserved further attention as the However, the Apalachicolan Region has minimizing a potential chain reaction taxonomy of some species in the region many endemic species (see from loss of the mussels in the was unresolved, and speculated that we ‘‘Introduction’’ in the Background ecosystem. may have been confused regarding section). About 30 of the 60 mussel Response: Historical information which species we actually proposed. species known from the region are indicates that some of these species Response: Although the genetics of endemic (Butler 1989, Williams and were once locally abundant; the purple various mussel genera in the Butler 1994). bankclimber still occurs abundantly at a Apalachicolan Region are little known Issue 54: Two malacologists suggested few sites. The introduced Asian clam (Butler 1989), the species included in that disease and predators are not has been common in Apalachicolan this final rule have been recognized by threats to these mussels, and unless Region rivers since 1960 (Schneider the malacological community for nearly information is otherwise available, 1967) (see Factor E in the ‘‘Summary of 12676 Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations

Factors Affecting the Species’’ section). species’ toxicity threshold is not percent of all projects (18,211) that were Although the Asian clam may have exceeded or its reproductive capacity is reviewed under the Act between 1988 become an increasingly important food not impaired. and 1992 went forward unchanged or for some predators (e.g., the muskrat), Cadmium may be the most toxic with only minor modifications. Only six the long-term ecological consequences heavy metal to mussels (Havlik and projects were halted due to endangered of its colonization are unknown. Marking 1987). Other heavy metals, species considerations. Issue 59: One respondent stated that ammonia, and chlorine also appear to be Issue 67: Numerous respondents data were not provided to substantiate particularly toxic to mussels, especially stated that channel maintenance and claims that the Asian clam may be in the early life stages. barge navigation in the ACF River responsible for the imperilment of the Issue 63: Several respondents system would be shut down or severely Ochlockonee moccasinshell. questioned the mussel listings if many curtailed if these species were listed. Response: Sickel (1973) and Bass and of their populations are non-viable. If Response: Through the section 7(a)(4) Hitt (1974) indicate that Asian clam so, not only was recovery impossible, conference requirement of the Act populations are dense in the ACF River but the Service should not have addressing species proposed for listing, system. This final rule contains expended funds for mussel surveys. the Service and the Corps have agreed additional information on how Asian Response: These mussel populations on measures regarding channel clams may be impacting these seven have been significantly reduced in maintenance operations that will avoid species (see Factor E in the ‘‘Summary numbers and now exist only as jeopardizing the mussel species present. of Factors Affecting the Species’’ fragmented populations in altered These measures will continue to be section). habitats (see ‘‘Species Accounts’’ in the implemented once the species are listed Issue 60: Several malacologists ‘‘Background’’ section). Although some (see ‘‘Available Conservation Measures’’ predicted that the exotic zebra mussel populations may not be viable, this does section). (Dreissena polymorpha) will inevitably not preclude listing. Such populations Issue 68: One respondent wanted the increase the probability of extinction for could be augmented with juveniles Service to guarantee that there would be the seven species based upon the produced through artificial propagation no financial hardship to industry, or impacts of this non-native species in or with reproducing adults from another that such costs should be borne by the midwestern river systems. population. Service. Another wanted to know the if Response: If the zebra mussel invades Issue 64: Several respondents stated Service would provide assurances the ACF system, it may be a serious that because the Service’s recovery regarding minimal potential impacts threat to these species (see Factor E in record was poor, additional species and restrictions resulting from these the ‘‘Summary of Factors Affecting the should not be listed. Another implied listings. Several respondents requested Species’’ section). that the proposal did not contain data that the Service provide an analysis of Issue 61: One commenter stated there needed to effect recovery or predict the the potential economic impacts of is scientific evidence that certain species’ recovery potential. dredging, navigation, waste water Response: A species’ recovery listing these species. discharges, silvicultural, and potential is not a factor in making a Response: Under Section 4(b)(1)(A) of agricultural activities may actually listing determination. Most endangered the Act, a listing determination must be benefit filter feeders through nutrient and threatened species reached that based solely on the best scientific and enrichment, flow regime modification, status over many decades due to habitat commercial data available. The and temperature modulation. loss and other complex causes. legislative history of this provision Response: The commenter provided Recovery of these species should not be clearly states the intent of Congress to no specific references. The Service expected to be rapid or easy. Recovery ‘‘ensure’’ that listing decisions are believes significant changes in water planning and implementation occur ‘‘* * * based solely on biological quality, including large increases in following a species’ listing, as required criteria and to prevent nonbiological sediments, decrease in flow due to by section 4(f) of the Act. considerations from affecting such impoundments, and nutrient increases, Issue 65: A few malacologists thought decisions * * *’’ H.R. Rep. No. 97–835, have been generally detrimental to the that it was the Service’s responsibility to 97th Cong., 2d Sess. 19 (1982). As native mussel fauna (Weber 1981, see that life history studies on these further stated in the legislative history, Sheehan et al. 1989, Goudreau et al. species and research on the well-being ‘‘* * * economic considerations have 1993). of river ecosystems should be no relevance to determinations Issue 62: One commenter stated that, conducted. regarding the status of species * * *’’ in certain parts of the world, mussels Response: In preparing the recovery Id. at 20. Because the Service is were used to clean up toxic waste plan for these species, the Service will specifically precluded from considering waters, and wondered why these consider the need for such research and economic impacts, either positive or species seemed to be more susceptible incorporate it in the plan as appropriate. negative, in a final decision on a to toxins when all they had to cope with Issue 66: Numerous commenters proposed listing, the Service need not were agricultural runoff and waste water believed these listings would consider the economic impacts of listing treatment plant effluents. The significantly impact economies of the these species. individual wanted to know what three States. One respondent stated that Issue 69: The Corps disagreed with chemicals were the most toxic to the Service had ‘‘juggled’’ the numbers the statement that channelization was a mussels. regarding section 7 consultations to primary cause of habitat loss. They Response: Mussels are filter feeders mislead the public. stated that sediment instability in that continually pass large volumes of Response: Based on its experiences maintained channels made these areas water through their bodies. Mussels take with the Act and listed mussels, the too unstable to maintain mussel in heavy metals and other contaminants Service does not believe the listing of communities. and store them in their tissues or these species will have a significant Response: The impacts of channel incorporate them into their shells. This effect on the economy of the three States modifications are addressed in Factor A allows them to effectively filter where they occur. A 1992 General in the ‘‘Summary of Factors Affecting pollutants from water, but only if the Accounting Office audit found that 99.9 the Species’’ section. Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations 12677

Issue 70: The Corps stated that effects from any proposed water Response: Recovery plans include turbidity from dredging is not as allocation formula will be needed (see reasonable actions that the Service detrimental to benthic habitats as is ‘‘Available Conservation Measures’’ believes necessary to bring species back runoff from streams along the section). to the point they no longer need Apalachicola River after thunderstorms. Issue 74: Two malacologists stated protection under the Act. They do not Response: Regardless of origin, that every human activity affecting these restrict land use practices and private impacts from sedimentation, siltation, species and their habitats should not property rights. The recovery planning and turbidity sources may continue to have been mentioned in the proposed process is designed to allow potentially be a problem in portions of the ACF rule; the Service should have focused on affected segments of the public to River system (see Factor A in the specific factors (i.e., sedimentation, participate in decision making and ‘‘Summary of Factors Affecting the suspended solids, pollution) with allows the special local knowledge of Species’’ section). objective, supporting evidence. affected communities to be fully Issue 71: The Corps stated that the Response: The information in the considered. Draft plans are made proposal did not provide evidence for ‘‘Summary of Factors Affecting the available for public review and the statement that dredging activities Species’’ section has been revised to comment, and all affected or interested resuspend toxicants bound to emphasize the factors believed most individuals and groups are encouraged sediments. important in the decline of these to participate. Response: While organochlorine mussels. Listing will provide these species the insecticides were detected in less than Issue 75: Some commenters disagreed protection of sections 7 (Federal agency 10 percent of sediment and tissue with the Service’s assertions regarding actions and consultations) and 9 samples taken in the ACF River system the inadequacy of riparian buffers, (prohibitions) of the Act. Section 9 during 1992 and 1993, such compounds particularly for silvicultural activities. ‘‘taking’’ exemptions are available under were formerly widely used in the basin Another commenter stated that the both sections 7 and 9. Section 7(b)(4) of (Buell and Couch 1995), are persistent Service overlooked the fact that the the Act provides for incidental take in the environment, toxic to aquatic life, State of Georgia had a law protecting involving Federal actions if such take is and partitioned into both sediments and streamside buffers. not likely to jeopardize listed species the lipid reservoir of organisms (Day and if reasonable and prudent measures 1990, Burton 1992). Response: The discussion of riparian buffers has been modified to incorporate are implemented to minimize such take. Issue 72: One respondent stated that For further discussion of Federal these comments (see Factor A in the the proposals did not explain why activities associated with these listings, ‘‘Summary of Factors Affecting the impoundments were considered a see the ‘‘Available Conservation Species’’ section). primary cause of habitat loss. Another Measures’’ section. stated that if impoundments are Issue 76: Several commenters Section 10 of the Act provides for the implicated, dams would be required to questioned the proposed rule’s issuance of permits to conduct be removed. implication of poor silvicultural otherwise prohibited activities. Through Response: Reservoir impacts on practices as contributing to the mussels’ section 10 habitat conservation planning mussels are well documented, and there demise. One commenter feared there (HCP) there is an opportunity to provide is no evidence that any of the seven could be an impact to the industry, species protection and habitat species can reproduce and successfully whereas others requested that data be conservation for non-Federal recruit in impoundments (see Factor A made available to document habitat development and land use activities that in the ‘‘Summary of Factors Affecting reduction as a result of these activities. may result in incidental take of a listed the Species’’ section). Although other Response: Normal silvicultural species. For landowners and local factors contributed to the mussels’ activities on private lands should not be governments, it provides long-term decline, the Service believes reservoirs affected by these listings (see ‘‘Available assurances that their activities will be in were a significant factor. Since few if Conservation Measures’’ section). The compliance with the requirements of the any of these species still occur in discussion of silvicultural activities has Act. Biologically, it provides the Service reservoirs, dam removal is not a Service been clarified in this final rule (see with a tool to offset the incidental take goal, nor would the Act require such an Factor A in the ‘‘Summary of Factors of listed, proposed, candidate, and other action. Affecting the Species’’ section). species by reconciling species Issue 73: One commenter feared that Issue 77: One commenter stated that conservation with economic the listings would affect ACF River timber is a long-term crop and clear- development. system water allocations under the Tri- cutting leaves land generally Issue 79: One respondent wanted a State Water Study (TSW). The undisturbed for 25 years or more. clarification of the Service’s term ‘‘poor Department of Energy’s Southeastern Response: Although clear-cutting may land-use practices.’’ Power Administration was concerned be conducted on a long-term basis, best Response: Poor land-use practices in that the mussel listings would require management practices for silvicultural the proposed rule referred to activities changes in reservoir operations that activities are important to protect stream that cause excessive erosion and might ultimately affect power habitats long after such activities have contribute to stream sedimentation, generation capabilities. Another occurred (see Factor A in the ‘‘Summary siltation, and turbidity. These include individual thought the species were of Factors Affecting the Species’’ activities such as clearing or plowing to proposed at this time to impact the on- section). the edge of stream banks, or carrying out going TSW study. Issue 78: One respondent stated that upland development without adequate Response: The Service has no flow if the mussels were listed, subsequent silt screens or erosion control. recommendations for these seven recovery plans would restrict land use Issue 80: Several respondents stated mussels. The listing proposal was practices and private property rights. that the species’ decline resulted from prepared after the completion of the Another stated that if these species are historical disturbances, and that present status survey according to normal listing listed, private individuals and conditions had improved, making priorities, and had no connection with businesses could be subject to sections listing unnecessary. Another respondent the TSW. However, a review of potential 7, 9, and 10 of the Act. realized the role of historical impacts, 12678 Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations but supported the listings and felt more review of Alabama’s water quality necessary if the listings would not affect should be done to protect the remaining standards, the Service’s biological individual activities. populations. opinion (dated October 8, 1996) Response: The Act requires listing Response: Historical human activities resulting from consultation with EPA based on the five criteria in section 4(a) have contributed to these species’ determined that there was not sufficient and does not allow for consideration of current status, and some factors may information to determine whether the impacts, or a lack thereof, on individual continue to threaten these mussels (see standards were likely to jeopardize the activities as part of a listing decision. Factor A in the ‘‘Summary of Factors continued existence of some of the Issue 87: The Corps stated that the Affecting the Species’’ section). listed species found in Alabama. The proposal provided minimal evidence to Although certain factors affecting these opinion anticipated incidental take for a prioritize human activities that may species have improved, continuing number of listed species, required have affected mussel habitat. threats to these species qualify them for modification of water quality standards Response: Additional information on listing. Listing will provide the Act’s to protect listed species, and specified such human activities has been protective and recovery measures. monitoring and research conditions to provided in Factor A in the ‘‘Summary Issue 81: Several respondents thought determine if changes in the standards of Factors Affecting the Species’’ the agricultural community was being were necessary. The Service anticipates section. directly implicated in poor land use that future water quality standard Issue 88: One respondent requested practices. Other respondents felt better consultations will follow a similar information relating to cost/benefit documentation was needed concerning approach. ratios associated with recovery actions. agricultural impacts, and believed that Issue 84: The Corps recommended Response: Costs associated with normal agricultural practices would be that a statement in the proposed rule implementation of recovery tasks will impacted from the listings. regarding the prolonged release of toxic be estimated when the recovery plan is Response: Listing of these mussels chemicals from a Department of Defense developed for these species. Cost/ should not affect normal agricultural facility should be revised, and that the benefit ratios are not calculated in practices (see ‘‘Available Conservation Service should have considered the recovery plans. Measures’’ section). Implementation of long-term dilution factor. Issue 89: One respondent asked what agricultural best management practices Response: A facility near Albany, effect the listing would have on has reduced erosion in the Georgia, discharged an estimated 3.6 commercial fishermen. Apalachicolan Region, and the billion liters (l) (0.95 billion gallons (g)) Response: The use of these mussels percentage of agricultural lands has of rinse, stripping, cleaning, and plating for bait would be a violation of section declined as second-growth forest has solutions through a short canal into the 9 of the Act. No other effects on replaced formerly cultivated lands Flint River from 1955 to 1977. The commercial fishermen are anticipated. (Couch et al. 1996). If best management Corps stated that the flow rate in the Issue 90: Several commenters practices are followed, the Service Flint River provided an average dilution believed the Service had misrepresented believes that agricultural activities will rate of 1:127,555 l (1:33,700 g) over the the science in the proposed rule, based be compatible with the continued 22-year period. Many of these toxicants upon an internal Service memorandum. survival of these seven mussels. were heavy metals used in plating Some individuals felt the Service had Issue 82: Several respondents stated solutions. Regardless of this dilution changed its position on the importance that listing the mussels would adversely factor, the Service believes the long- of human impacts after the proposed impact the gravel-mining industry. term release of this effluent likely had, rule was published. Response: Large-scale mining of stable and may continue to have, a chronic Response: The Service believes the substrate inhabited by these mussels toxic effect on Flint River mussel proposed rule was scientifically sound, would be detrimental to them. The populations (see Factor A in the as was confirmed by peer review. mining of unsuitable habitat (i.e., ‘‘Summary of Factors Affecting the Regardless of editing changes in the unconsolidated substrates, substrates Species’’ section) and deserves draft, the proposed rule signed by the within impoundments) would not be additional study. Service Director and published in the likely to affect them. Gravel mining in Issue 85: A few commenters Federal Register on August 3, 1994 (59 the Chattahoochee River should be questioned the threat of toxic chemical FR 39524), represented the Service’s unaffected (see Factor A in the spills on highway and railway bridges position on the various threats to the ‘‘Summary of Factors Affecting the over streams. Some commenters thought seven mussels. In formulating this final Species’’ section). that any listing would hamper efforts to rule, the Service has considered all Issue 83: One commenter feared that rebuild bridges washed out during substantive comments and re-examined these listings could cause modification, major floods. these threats (see the ‘‘Summary of significant construction cost increases, Response: Toxic chemical spills can Factors Affecting the Species’’ section). or even abandonment of existing and occur at highway, railway, and pipeline The perception that the Service planned waste water treatment plants. crossings, and industrial sites (see changed its position was apparently Another commenter wanted to know Factor A in the ‘‘Summary of Factors based on the description in the what would happen to municipalities Affecting the Species’’ section). Section proposed rule of human activities (e.g. that discharged effluents into streams 7 consultations for bridge replacements agriculture and forestry) that had inhabited by these species. are performed on a regular basis for impacted these species, versus the Response: The Service has no aquatic species throughout the Service’s explanation at public meetings information showing that current water southeast; occasionally, species surveys that the listing would have little impact quality standards threaten these species. are requested prior to construction. on such activities. Most of these At the time water quality standards for Most such projects do not affect, or have activities are not directly regulated or particular states are reviewed under minimal effects on, listed species. These monitored by the Service or other section 402 of the Clean Water Act, the listings are not expected to affect bridge Federal agencies, and are, therefore, EPA will be required to consult with the replacement. unlikely to be affected. Secondly, many Service on any standards that may affect Issue 86: One commenter wanted to human activities result in effects that listed species. In the course of the EPA know why Federal protection was are non-point in origin (e.g., erosion) Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations 12679 and are not easily attributable to a developed and data are available to fully Issue 97: One commenter stated that particular source. The ways in which evaluate the effectiveness of current if the Service reintroduced mussel these listings are expected to affect national water quality standards, the populations, the public would not know human activities are discussed in the Service believes it is premature to where the reintroductions occurred, or ‘‘Available Conservation Measures’’ attempt, in this final rule, to address any the regulatory impacts resulting from section below. specific deficiencies and/or these efforts. Issue 91: EPA requested that the inadequacies that may exist in EPA’s Response: Section 4(f)(4) of the Act Service clarify the following statement implementation of the CWA regarding requires the Service to provide public in the proposal—‘‘Existing authorities the protection of water quality. notice and an opportunity for public available to protect aquatic systems, Issue 92: One respondent questioned review and comment on all draft such as the Clean Water Act [CWA] if the Service had complied with the recovery plans. Establishment of an administered by EPA and the [Corps], National Environmental Policy Act in experimental population under section have not been fully utilized and may the development of this rule. 10(j) of the Act would be done by have led to the degradation of aquatic Response: See ‘‘National regulation, thus, requiring the Service to environments in the Southeast Region, Environmental Policy Act’’ section. identify the location of the population thus resulting in a decline of aquatic Issue 93: A few respondents stated and provide for a public comment species.’’ EPA also requested that the that current State and Federal laws, period. Any population determined to Service identify deficiencies in their interagency regulations, permit be an experimental population is treated implementation of the CWA regarding guidelines, and voluntary programs as if it were listed as threatened for State adopted narrative and numeric governing land usage were sufficient to purposes of establishing protective water quality criteria, State water use protect the mussels, and thus, regulations under section 4(d) of the classifications by streams occupied by questioned the need to provide Act. The special rule for the these species, aquatic life criteria additional protection when private experimental population would contain guidance values; and National Pollutant property rights would be compromised. the prohibitions and exceptions for that Discharge Elimination System (NPDES) Response: The Service agrees that population. permit procedures. Several respondents current State and Federal laws and Issue 98: Numerous commenters questioned the need to improve regional regulations governing land use stated that the Service had limited the water quality, suggesting that existing practices, if fully implemented, provide public’s opportunity to comment on the regulations are adequate to protect the significant protection for these species. proposal by planning public hearings species, and that poor water quality had However, the current status of these outside the affected area, during the been corrected since the passage of the seven species meets the listing criteria Thanksgiving holidays, and at facilities CWA. of the Act. Listing will provide the too small to accommodate the public. Response: Through implementation of additional protective and recovery They also stated that comment periods the CWA, water quality has improved provisions of the Act. were too short, that the Service might following the construction of advanced Issue 94: Several respondents stated refuse to pay for public hearing waste water treatment plants. Water that listing these species could be facilities, or had not planned to hold quality criteria, however, were considered an unfunded mandate if public meetings. developed without specific knowledge State and local governmental agencies Response: Section 4(b)(5) of the Act of the tolerances of these seven mussels are required to expend funds to satisfy requires that one public hearing be held and previously listed mussels, which permit requirements for their protection. on proposed listing regulations, if may be more sensitive than the species Response: The Act does not mandate requested. Meetings are discretionary typically used to test waste water (Keller State participation in the recovery of and are held dependent on public and Zam 1991, Keller 1993). Some listed species, but the Service interest and need. In conjunction with mussel populations continue to decline recognizes and is sensitive to the fact the proposed rule, the Service held five even in areas that appear to have that costs of some projects may increase public information meetings followed suitable physical habitat. Environmental as a result of these listings. However, by five public hearings in three States factors including contaminants may still the decision to list the species is based throughout the range of the mussels (see be adversely affecting the growth, on biological factors regarding status first part of ‘‘Summary of Comments reproduction, recruitment, and/or and threats. and Recommendations’’ section). survival of these populations (see Issue 95: One respondent stated that Meetings and hearings were scheduled Factors A and E in the ‘‘Summary of the Service had not considered the to avoid holidays or other conflicts. Factors Affecting the Species’’ section). benefits that the erosion control Meeting and hearing sites contained Little is known about the potential practices required by the U.S. Food seating well beyond the attendance impacts of contaminants on fresh water Security Act have had on the aquatic needs at all events. Comments were mussels. Research is needed to address environment. accepted at the hearings and by mail; the lethal and sublethal effects of acute Response: The Service agrees that the comment period was opened four and chronic exposure to toxins for all these requirements have benefitted times, over a period of two years (59 FR life stages of mussels. This research will mussels by reducing silt loads in 39524, 59 FR 63987, 60 FR 20072, 61 FR entail identifying appropriate surrogate streams. 36020). The Service, therefore, believes species, devising test protocols, and Issue 96: One respondent stated that there was adequate opportunity for conducting studies to evaluate the if these species are listed, the public public comment. effectiveness of these criteria. The will not know when they are in Issue 99: Several commenters stated Service is currently working with EPA violation of the Act until ‘‘after the that the Service had made the to develop a memorandum of agreement fact.’’ determination to list these species prior (MOA) that will address how EPA and Response: See the ‘‘Available to public consideration, based on the the Service will interact relative to CWA Conservation Measures’’ section for term ‘‘final rule’’ having been used by water quality criteria, standards, and activities the Service believes would Service employees at a public meeting. NPDES permits within the Service’s likely constitute violations of section 9 Response: The Service recognizes that Southeast Region. Until the MOA is of the Act. during the proposal period, the proper 12680 Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations terms relating to a regulatory decision followed the Service’s normal priorities 1995 (see ‘‘Previous Federal Action’’ are ‘‘final decision’’ and ‘‘final decision and procedures. section). The Service published listing document.’’ This final rule has been Issue 104: Several respondents stated priority guidance to address the backlog prepared after full consideration of all that the Service already protects too of listing activities as a result of the relevant comments and information many species and the country does not moratorium (March 11, 1996 (61 FR received during the comment period. need any more listed species. 9651), May 16, 1996 (61 FR 24722), Issue 100: One respondent believed Response: Section 4(a) of the Act September 17, 1996 (61 FR 48962), the Service had preconceived ideas and requires species to be listed based on December 5, 1996 (61 FR 64475), and conclusions as to the species’ status the five listing factors. The Act sets no October 23, 1997 (62 FR 55268). The prior to conducting the status survey. limit on the number of species to be guidance assigned the processing of a Response: The seven species were recognized as endangered or threatened. final decision for these seven mussels to considered to be category 2 species prior Issue 105: A few commenters stated Tier 2 (resolving the listing status of to the status survey (see ‘‘Previous that the Service had failed to designate outstanding proposed rules). Federal Action’’ section), but this did critical habitat or was planning to The Service also solicited the expert not mean a decision had been made to designate critical habitat for these opinions of 60 scientists with list them. Many species for which status species. One respondent feared that knowledge of mussels and sampling surveys are carried out are found not to designating critical habitat would halt methodologies, including most North meet the listing criteria of the Act. navigation channel maintenance, American malacologists. They were Issue 101: Several respondents stated whereas another thought the Service asked to comment on the adequacy of that the Service does not use good should determine the critical habitat the status survey in supporting the science in the listing process; one necessary for their survival and then proposed rule. Responses were received respondent stated that the listings conduct an economic impact study. from 37 individuals and pertinent would be arbitrary and capricious. Response: Section 4(a)(3) of the Act comments were incorporated into this Several respondents believed that the requires the Service to designate critical final rule. Service had violated the Administrative habitat to the maximum extent prudent Generally, the independent reviewers Procedure Act, the Act’s ‘‘best scientific and determinable at the time a species strongly supported the listing proposal. and commercial data available’’ is listed. The Service has determined Many agreed with the Service’s standard, and Constitutional guarantees that the designation of critical habitat concerns about the threats to these of equal protection and due process. for these seven species is not prudent species, including loss of riverine Response: The Service believes that (see ‘‘Critical Habitat’’ section). habitat, vulnerability of specific stages this final rule incorporates the best Issue 106: One commenter believed of the life histories, and impaired available scientific and commercial that any effort to delist a mussel once reproduction. Seven malacologists information and complies with the it was placed on the Federal list would stated that the status survey was one of Administrative Procedures Act. require volumes of detailed data and be the most comprehensive studies they Issue 102: One individual stated that at the expense of local governments. were aware of. he was not provided an opportunity to Response: The Act provides the same Two malacologists suggested that the comment on the status survey report criteria to reclassify or delist species as Service withdraw the proposed rule and and the proposed rule. to list them. Subsequent to a listing, conduct further studies, but provided no Response: The comment periods, section 4(f) of the Act requires the specific information justifying the public meetings, and public hearings Service to develop and implement withdrawal of the listing proposal. associated with the proposed rule (see recovery plans for all listed species. However, in a written statement read at ‘‘Previous Federal Action’’ section and Recovery plans include goals for two of the public hearings, one of these the response to issue 98) provided reclassification and delisting. Section malacologists stated that ‘‘* * * the extensive opportunities for interested 4(c)(2) of the Act further requires the integrity of the current study is not parties to comment on or to request Service to review the status of listed questioned * * *’’ (P.Yokley, Jr., copies of Service documents. species every five years to determine if University of North Alabama, in litt. Issue 103: One respondent reclassification or delisting is 1995). commented that the Service was under appropriate. There is no obligation for Summary of Factors Affecting the pressure to list as many as possible of local governments or other parties to Species the 3,000 species on the annual notices provide information on the status of of review. listed species or to initiate After a thorough review and Response: On February 28, 1996, (61 reclassification or delisting actions. consideration of all information FR 7596) the Service revised its Issue 107: One respondent claimed available, the Service has determined candidate species list, replacing an old the Service missed the administrative that the fat threeridge, shinyrayed system that listed nearly 4,000 deadline for publishing a final rule for pocketbook, Gulf moccasinshell, ‘‘candidate’’ species under three these species. Based on our Federal Ochlockonee moccasinshell, and oval separate categories (see also ‘‘Previous Register notice of July 9, 1996, (61 FR pigtoe should be classified as Federal Action’’ section). The old 36021) to reopen the comment period, endangered species, and the Chipola system led many people to the mistaken this commenter was unclear as to slabshell and purple bankclimber conclusion that the addition of whether the mussels faced ‘‘imminent should be classified as threatened thousands of species to the Federal List threat’’ on the basis of the Service species. Procedures found at Section of Endangered and Threatened Wildlife statement that the proposals were a 4(a)(1) of the Act and regulations and Plants was imminent. Under the ‘‘Tier 2 priority’’ for listing. implementing the listing provisions of revised list, only those species for Response: The congressional the Act (50 CFR part 424) were which there is enough information to moratorium on final decisions on followed. A species may be determined support a listing proposal are called proposed listings, from April 1995 to to be an endangered or threatened ‘‘candidates.’’ These were formerly April 1996, precluded publication of a species due to one or more of the five known as ‘‘category 1’’ species. The final rule for these species by the Act’s factors described in section 4(a)(1). proposal to list these seven mussels administrative deadline of August 3, These factors and their application to Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations 12681 the fat threeridge (Amblema neislerii), (two sites each), and the shinyrayed which is well known for its highly shinyrayed pocketbook (Lampsilis pocketbook (three sites) (Clench 1955, erodible soils. Most of the topsoil in the subangulata), Gulf moccasinshell Clench and Turner 1956). Piedmont was eroded by 1935 (Wharton (Medionidus penicillatus), Ochlockonee Talquin Reservoir inundated 1978). Clench (1955) attributed the moccasinshell (Medionidus approximately 32 km (20 mi) of riverine decline of the rich mussel fauna of the simpsonianus), oval pigtoe (Pleurobema habitat (of a total of 278 km [172 mi] of Chattahoochee River to erosion from pyriforme), Chipola slabshell (Elliptio mainstem, or 12 percent impounded) in intensive farming before the Civil War. chipolaensis), and purple bankclimber the middle portion of the Ochlockonee The steep slopes characteristic of the (Elliptoideus sloatianus) are as follows. River and the lower 5 km (3 mi) of the Fall Line Hills and the Piedmont result Little River, its largest tributary. in higher erosion rates than slopes on A. The Present or Threatened Preimpoundment records exist for four more level lands (Pimentel et al. 1995). Destruction, Modification, or of these species from a site at the Couch et al. (1996) indicated that all Curtailment of its Habitat or Range upstream end of Talquin Reservoir parts of the ACF Basin have been Historically, mussel faunas in the (Clench and Turner 1956). This subject to alteration of forest cover. United States have declined extensively impoundment may have flooded habitat They attributed severe historical erosion as an unintended consequence of for the Ochlockonee arcmussel, believed and sedimentation in the Blue Ridge human development (Havlik and to be extinct (Williams and Butler 1994), Province to mining and logging. The Marking 1987, Neves 1993). The mussel and may block potential host fish Service believes that while deforestation fauna in much of the Apalachicolan movements for other mussels. The historically represented a threat to these Region has been negatively impacted by shinyrayed pocketbook, Ochlockonee mussels, current silvicultural activities impoundments, siltation, moccasinshell, and oval pigtoe were following best management practices are channelization, and by water pollution. absent downstream of the dam. Only compatible with the continued The cumulative effect of these factors on occasional populations of the purple existence of the species (see Available the aquatic ecosystems of the ACF River bankclimber were found in this portion Conservation Measures’ section). basin has not been systematically of the river. Because of their sedentary evaluated; an ongoing USGS National Populations of the shinyrayed characteristics, mussels are extremely Water Quality Assessment is currently pocketbook, Gulf moccasinshell, and vulnerable to toxic effluents (Sheehan et addressing this task (Couch et al. 1996). purple bankclimber have been isolated al. 1989; Goudreau et al. 1993). There Impoundments have permanently due to major impoundments on the are discharges from 137 municipal altered a significant portion of the ACF Apalachicola, Flint, and Ochlockonee waste water treatment facilities in the River system, which has 16 mainstem rivers. Smaller impoundments on ACF River basin. Although the quality impoundments. Impoundments affect tributary streams in the region have of effluents has improved since the mussels by altering current, substrate resulted in further population isolation 1980’s due to improved waste water (Sickel 1981, Holland-Bartels and of some of the species. treatment and a 1990 phosphate Waller 1987), and water chemistry A navigation channel is maintained detergent ban in Georgia, two-thirds of (Allan and Flecker 1993, Stansbery on the Chattahoochee and Apalachicola the 938 stream miles in the Georgia 1995), factors which are important to rivers from Columbus, Georgia, to the portion of the ACF River basin do not riverine mussels. Lack of mussel Gulf Coast, a distance of approximately meet the designated water use recruitment in impoundments may be 325 km (200 mi), and the lower 50 km classifications under the requirements due to loss of glochidia in the substrate, (30 mi) of the Flint River. River habitat of the Clean Water Act (Couch et al. attacks on glochidia by microorganisms, and stable benthic substrates have been 1996). or the juveniles’ inability to survive in altered in significant portions of this Agricultural influences include silt (Ellis 1929, Scruggs 1960, Williams system. None of these seven mussels nutrient enrichment from confined 1969, Fuller 1974). occur in the navigation channels of the feeding of poultry and livestock The Chattahoochee River has 13 Chattahoochee or Flint rivers. The fat (primarily in the Piedmont Province), dams, including three locks and dams threeridge and the purple bankclimber and inputs of pesticides and fertilizers along its lower half; the lower mainstem occur in portions of the Apalachicola from row crop agriculture (primarily in is inundated for approximately 400 km River that have a navigation channel. the Coastal Plain) (Couch et al. 1996). (248 mi). An additional 85 km (53 mi) The Corps and the Service have agreed An estimated 3.6 billion liters (0.95 of mainstem habitat are impounded on procedures to minimize impacts to billion gallons) of chemical-laden rinse, upstream of Atlanta, making these species when navigation stripping, cleaning, and plating approximately 485 km (301 mi) of the maintenance is carried out (see solutions were discharged through a mainstem’s 700 km (434 mi) total length ‘‘Available Conservation Measures’’ short canal into the Flint River from (69 percent) impounded. The lower section). 1955 to 1977 at a Department of Defense portions of many tributaries were Many regional streams have increased facility in Albany, Georgia (P. permanently flooded because of these turbidity levels due to siltation. These Laumeyer, Fish and Wildlife Service, reservoirs, including a known site for seven mussels probably attract host pers. comm.). The Service believes the the shinyrayed pocketbook in Walter F. fishes with visual cues. Such a long-term release of this effluent likely George Reservoir (Clench and Turner reproductive strategy depends on clear had, and may continue to have, a 1956). water. Turbidity is a limiting factor chronic toxic effect on Flint River Impoundments have altered impeding sight-feeding fishes (Burkhead mussel populations. The canal and approximately 175 km (109 mi) of 600 and Jenkins 1991), and may have other portions of the facility are a km (372 mi), or 29 percent, of mainstem contributed to the decline of these seven Superfund site. riverine habitat on the Flint River. species. Abandoned battery salvage operations Preimpoundment records from Light to moderate levels of siltation affect water quality in the Chipola River. Seminole and Blackshear reservoirs are common in many Apalachicolan Concentrations of heavy metals (e.g., exist for the fat threeridge and oval Region streams with populations of chromium and cadmium) in Asian pigtoe (one site each), the Gulf these seven species, while heavy clams and sediments increased in moccasinshell and purple bankclimber siltation has occurred in the Piedmont, samples taken downstream from two 12682 Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations operations (Winger et al. 1985). Dead benthic habitats in the ACF system. This these mussels potentially makes them Lake, on the lower mainstem, was can destroy mussel habitat at the more appealing to shell collectors. considered a contaminant sink. collection site and resuspend silt, Revealing specific stream reaches Chromium was found at levels known to impacting downstream areas. In a study harboring these species could pose a be toxic to mussels (Havlik and Marking on the effects of suction dredging for threat from collectors (see ‘‘Critical 1987) in sediment samples from Dead gold on stream invertebrates, Harvey Habitat’’ section below). Lake downstream (Winger et al. 1985). (1986) concluded that impacts from State regulations now in effect should A large population of the fat threeridge suction dredges can be expected to be deter or prevent the threat from has been extirpated in Dead Lake, more severe in streams with softer commercial collecting (see Factor D possibly from such contamination. substrates (e.g., sand, gravel), as is below). Residential development in Georgia is typical for most Apalachicolan Region C. Disease or Predation resulting in the conversion of farmland streams. to subdivisions in areas relatively Many of the impacts discussed above Diseases of mussels are virtually distant from the cities of Albany, occurred in the past as unintended unknown; this factor is not currently Atlanta, and Columbus. Development consequences of human development in known to affect these seven species. and land clearing increases siltation the Apalachicolan Region. Improved Juvenile and adult mussels may serve from erosion, runoff and transport of understanding of these consequences as prey for various animals, mostly pollutants from stormwater, and has led to regulatory (e.g., the Clean fishes, turtles, birds, and mammals municipal waste water facility effluents. Water Act) and voluntary measures (e.g., (Fuller 1974). The muskrat has been Lenat and Crawford (1994) found that in best management practices for implicated in potentially jeopardizing Piedmont drainages, urban catchments agriculture and silviculture) and recovery of federally listed mussels had higher maximum average improved land use practices that are (Neves and Odum 1989). Although concentrations of heavy metals than generally compatible with the continued muskrats are not common within the agricultural or forested catchments. existence of these mussels. Nonetheless, range of these species, Piedmont Urban waterways may harbor human- the seven mussel species currently are populations of the shinyrayed produced contaminants in highly restricted in numbers and pocketbook, Gulf moccasinshell, and concentrations sufficient to significantly distribution and show little evidence of oval pigtoe in the upper Flint River affect fish health (Ostrander et al. 1995). recovering from historic habitat losses. system may be subject to some degree of Additional water supply muskrat predation. impoundments may be planned to B. Overutilization for Commercial, Recreational, Scientific, or Educational D. The Inadequacy of Existing satisfy expanding urban and suburban Regulatory Mechanisms demand. Any impoundments on Purposes streams that support these species may The threeridge (a relative of the fat A scientific collecting permit is have impacts on their long-term threeridge) and the washboard required in the State of Georgia to survival. Impoundments on streams that (Megalonaias nervosa), which is collect mussels for scientific purposes. do not harbor these species could be superficially similar to both the fat Commercial harvest in Georgia is designed in ways to minimize or threeridge and purple bankclimber, are allowed only for the washboard. eliminate potential impacts to these heavily utilized as sources of shell for Mechanical harvest of mussels is illegal. mussels and their habitat downstream. nuclei in the cultured pearl industry. Commercially harvested mussels in Future impoundments, particularly in The Service has been informed by Georgia must be large enough to not the metropolitan Atlanta area, could commercial shell buyers that shells from pass through a 102 mm (4.0 in) ring. The impact stream habitats where small the ACF River system are of poor harvest season is from April 1 to August populations of the shinyrayed quality. However, shell material from 31. Hand-picking mussels requires a pocketbook, Gulf moccasinshell, and this area may be used as ‘‘filler’’ for resident or non-resident fishing license. oval pigtoe exist. higher quality material from elsewhere Despite permit requirements, In-stream and near-stream gravel (J. Brim Box, USGS, Gainesville, enforcement is difficult and there are no mining has occurred in various portions Florida, pers. comm.). In the 1980’s, the present restrictions on sites of harvest or of the Apalachicolan Region. Jenkinson price of shell increased, resulting in quantity taken in Georgia. Although not (1973) recorded the shinyrayed increased competition for the harvesting a target species, the purple bankclimber pocketbook, oval pigtoe, Gulf of shell beds in the Apalachicolan is superficially similar to the moccasinshell, and ten other species in Region. commercially exploited washboard to be Little Uchee Creek, a tributary of the Biological supply companies have potentially threatened (see Factor B in Chattahoochee River in Alabama. The used the Flint River and possibly the this section). The fat threeridge is creek had supported in-stream gravel Ochlockonee River as sources for large probably extirpated from Georgia (Butler mining; only a few shell fragments were mussel specimens, including the purple 1993). found at Jenkinson’s site in the status bankclimber and possibly the fat Mussel harvest in Florida is deemed survey, although living shiny-rayed threeridge, to sell to academic non-profitable due to the absence of pocketbooks were found at another site institutions for use in laboratory studies. large populations of desirable species in Little Uchee Creek. Gravel mining The practice of dissecting mussels in and poor shell quality, but there is operations in the Chattahoochee River introductory laboratory courses is no potential for harvest of the fat threeridge do not pose a threat to these mussels longer widespread, and the threat posed and purple bankclimber. In July 1996, since no populations exist there now. to large species such as the fat the State of Florida enacted a However, where in-stream gravel threeridge and purple bankclimber is moratorium on commercial mussel operations are conducted in the vicinity probably decreasing. harvest (G.L. Warren, FGFWFC, pers. of populations of these species, mussels Nonetheless, harvest of the fat comm.). Limited collection of mussels may be displaced, crushed, or covered threeridge and purple bankclimber for under a State permit is allowed for by bottom materials. these purposes could decimate their scientific or other non-commercial Some artifact and fossil collectors remaining populations (see Factor D in purposes. Alabama has commercial have used suction dredges to scour this section). The increasing rarity of harvest guidelines, including species Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations 12683 size limits, restricted harvest areas, and native mussel populations and may only seven percent of sampled sites closed seasons. Of these seven mussels, pose a threat to these mussels in the within the historic range still have live only the shinyrayed pocketbook is future. Introduced into the Great Lakes individuals. Limited recruitment of found in Alabama, and it is not a in the late 1980’s, this exotic species has young appears to be occurring only at commercially sought species. been rapidly expanding its range in the one site on the lower Apalachicola South, but has not been reported yet E. Other Natural or Manmade Factors River. from Apalachicolan Region streams. Affecting Its Continued Existence Shinyrayed pocketbook: This species The complex life cycle of mussels historically occurred in the ACF, Because of slow growth and relative increases the probability that weak links Chipola, and Ochlockonee River immobility, mussel recolonization of in their life history will preclude systems. It now occurs at only 21 impacted river reaches is a lengthy successful reproduction and recruitment percent of the historical sites sampled, process, achieved by dispersal of newly (Neves 1993). Egg formation and and is extirpated from the mainstems of metamorphosed juveniles via infected fertilization are critical phases in the life the ACF rivers. Populations have host fish, passive adult movement history, because many mussels fail to declined significantly in the Chipola downstream (Neves 1993), and active form eggs (Downing et al. 1989) or River. The species occurs at 29 sites in migration or passive movement fertilization is incomplete (Matteson tributaries of the ACF rivers and the downstream of small individuals (Kat 1948). Fertilization success has been Chipola and Ochlockonee rivers. Only 1982). Establishment of self-sustaining shown to be strongly correlated with two sites show evidence of recruitment; populations requires decades of spatial aggregation; excessively however, the largest known population immigration and recruitment, even for dispersed populations may have poor shows no signs of recruitment. common species that may occur in high success (Downing et al. 1993). The need Gulf moccasinshell: This species densities (Neves 1993). A mussel for specific fish hosts and the difficulty historically occurred in the ACF, species should be considered stable in recolonizing areas where mussels Chipola, Choctawhatchee, and Yellow only when active population have been decimated are other life River systems and in Econfina Creek. It recruitment is demonstrated and a history attributes which make them is no longer present at most of the significant number of viable populations vulnerable (see ‘‘General Biology’’ in the historical sites sampled, and is exists (A.E. Bogan, North Carolina State ‘‘Background’’ section). apparently extirpated from the Museum, in litt. 1995). These seven species have been Apalachicola, Choctawhatchee, and The exotic Asian clam (Corbicula rendered vulnerable to extinction due to Yellow rivers. There are 13 known sites, fluminea) has invaded all of the rivers significant habitat loss, range restriction, none showing evidence of recruitment. where these seven mussels occur. First and population fragmentation and size reported from the Apalachicolan Region reduction. Most of their populations Ochlockonee moccasinshell: This about 1960 (Schneider 1967), this have been extirpated from the Piedmont species occurred historically only in the species may compete with native portion of their historical ranges, four of Ochlockonee River system. It was mussels for nutrients and space (Clarke five species are extirpated from formerly known from eight sites. It is 1983, 1986). Densities of Asian clams Alabama, and none of the species now known only from two sites, where are sometimes high in Apalachicolan remain in the Chattahoochee River. The there is no evidence of recruitment. Region streams, with estimates ranging restricted distribution of these seven Only three live individuals have been from approximately 100/m (9/ft) square species also makes localized found since 1974. (Flint River, Sickel 1973) to over 2,100/ populations susceptible to catastrophic Oval pigtoe: This species was m (195/ft) square (Santa Fe River, Bass events and collection. historically found throughout the ACF, and Hitt 1974). In some streams, the The Service has carefully assessed the Chipola, Ochlockonee, and Suwannee substrate has changed from homogenous best scientific and commercial River systems, and in Econfina Creek. It silty sand or sand to one with a gravel- information available regarding the past, occurred at one-third of the historical like component comprised of huge present, and future threats faced by sites sampled. It has been extirpated numbers of live and dead Asian clams. these seven mussels in determining to from the mainstem of the Chattahoochee Buttner and Heidinger (1981) make this final rule. Based on this River, representing a significant portion estimated that an Asian clam could evaluation, the preferred action is to list of its historical range; occurrences in the filter an average of 347 milliliters (12.1 the fat threeridge, shinyrayed Flint and Suwannee River systems have ounces) of water per hour. Clarke (1983) pocketbook, oval pigtoe, Gulf decreased from 32 to 12. The species is hypothesized that at a density of 250/m moccasinshell, and Ochlockonee currently known to occur at 26 sites, (22/ft) square in a 1 m (3.3 ft) deep river moccasinshell as endangered species, with no evidence of recruitment. flowing at 1.6 km (1 mi) per hour, Asian and the Chipola slabshell and purple The Chipola slabshell and purple clams could filter 95 percent of the bankclimber as threatened species. bankclimber are likely to become phytoplankton out of the water over 38 The fat threeridge, shinyrayed endangered species in the foreseeable river km (24 river mi). Clarke (1986) pocketbook, oval pigtoe, Gulf future throughout all or a significant believed the Asian clam posed a threat moccasinshell, and Ochlockonee part of their range: to the survival of the endangered Tar moccasinshell are in danger of Chipola slabshell: This species spinymussel (Elliptio steinstansana) in extinction throughout all or a significant occurred historically at eight sites in the North Carolina. Heard (1977) noted the part of their range as follows: Chipola River and one site in the disappearance of local ACF River Fat threeridge: This species Chattahoochee River system. It is system mussel populations concurrent historically occurred in the Flint, currently known from five sites in the with colonization of the Asian clam. Apalachicola, and Chipola rivers, and is Chipola River. This species appears to Kraemer (1979) stated that the Asian currently known from six sites on the have some tolerance of soft sediments clam may outcompete native mussels in latter two rivers. It has been extirpated and, therefore, has more habitat altered streams. from the Flint River, which included potentially available than the other Another introduced bivalve, the zebra most of its historic range. It has species in this rule. It was, however, mussel (Dreissena polymorpha), has disappeared from most of the historical found only at nine percent of the sites caused the extirpation of numerous sites where it was formerly found, and sampled within its historic range, and 12684 Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations there is no current evidence of whether or not critical habitat was habitat as critical will be accomplished recruitment. designated. Section 7(a)(2) requires more effectively with the current Purple bankclimber: This species Federal agencies to ensure that activities coordination process and is preferable historically occurred in the ACF, they authorize, fund, or carry out are not for aquatic habitats which change Chipola, and Ochlockonee River likely to jeopardize the continued rapidly in response to watershed land systems. It currently occurs in the existence of a listed species or to use practices. In addition, the Service Apalachicola, Flint, and Ochlockonee destroy or adversely modify its critical believes that any potential benefits to rivers, with 41 sites known. It may be habitat. The fat threeridge, shinyrayed critical habitat designation are extirpated from the Chattahoochee and pocketbook, Gulf moccasinshell, outweighed by additional threats to the Chipola rivers. There is some evidence Ochlockonee moccasinshell, oval species that would result from such of recruitment at one site in the pigtoe, Chipola slabshell and purple designation, as discussed below. Apalachicola River. bankclimber have become so restricted Though critical habitat designation directly affects only Federal agency Critical Habitat in distribution that any significant adverse modification or destruction of actions, this process can arouse concern Critical habitat is defined in section 3 their occupied habitats would likely and resentment on the part of private of the Act as: (i) the specific areas jeopardize their continued existence. landowners and other interested parties. within the geographical area occupied This would also hold true as the species The publication of critical habitat maps by a species, at the time it is listed in recovers and its numbers increase. As in the Federal Register and local accordance with the Act, on which are part of the development of this final newspapers, and other publicity or found those physical or biological rule, Federal and State agencies were controversy accompanying critical features (I) essential to the conservation notified of the mussels’ general habitat designation may increase the of the species and (II) that may require distributions, and they were requested potential for vandalism as well as other special management considerations or to provide data on proposed Federal collection threats (See Factor B under protection; and (ii) specific areas actions that might adversely affect the ‘‘Summary of Factors Affecting the outside the geographic area occupied by species. Should any future projects be Species’’). For example, in 1993 the a species at the time it is listed, upon proposed in areas inhabited by these Alabama sturgeon was proposed for a determination that such areas are mussels, the involved Federal agency endangered status with critical habitat essential for the conservation of the will already have the general (59 FR 33148). Critical habitat included species. ‘‘Conservation’’ means the use distributional data needed to determine the lower portions of the Alabama, of all methods and procedures needed if the species may be impacted by their Cahaba, and Tombigbee rivers in south to bring the species to the point at action, and if needed, more specific Alabama. The proposal generated which listing under the Act is no longer distributional information would be thousands of comments with the necessary. primary concern that the actions would Section 4(a)(3) of the Act, as provided. Therefore, habitat protection for these seven species can be devastate the economy of the State of amended, requires that, to the maximum Alabama and severely impact adjoining extent prudent and determinable, the accomplished through the section 7 jeopardy standard and there is no States. There were reports from State Secretary designate critical habitat at the conservation agents and other time a species is determined to be benefit in designating currently occupied habitat of these species as knowledgeable sources of rumors endangered or threatened. The Service’s inciting the capture and destruction of critical habitat. regulations at 50 CFR 424.12(a)(1) state Alabama sturgeon. A primary that designation of critical habitat is not Recovery of these species will require contributing factor to this controversy prudent when one or both of the the identification of unoccupied stream was the proposed designation of critical following situations exist: (1) The and river reaches appropriate for habitat for the sturgeon. species is threatened by taking or other reintroduction. The Service is currently The seven mussel species addressed activity and the identification of critical working with the State and other in this proposal are especially habitat can be expected to increase the Federal agencies to periodically survey vulnerable to vandalism. They all are degree of threat to the species or (2) and assess habitat potential of stream found in shallow shoals or riffles in such designation of critical habitat and river reaches for listed and restricted stream and river segments and would not be beneficial to the species. candidate aquatic species within the are relatively immobile and unable to The Service finds that designation of ACF and Ochlockonee river systems and escape collectors or vandals. They critical habitat is not prudent for these the Yellow and Santa Fe rivers. (For the inhabit remote but easily accessed areas, species. Such a determination would Apalachicola River, for example, see the and they are sensitive to a variety of result in no known benefit to these discussion under ‘‘Available easily obtained commercial chemicals species, and designation of critical Conservation Measures’’ below.) This and products. Because of these factors, habitat could further pose a threat to process provides up-to-date information vandalism or collecting could be them through publication of their site- on instream habitat conditions in undetectable and uncontrolled. specific localities. response to land use changes within All known populations of these seven Critical habitat designation, by watersheds. Information generated from mussel species occur in streams flowing definition, directly affects only Federal surveys and assessments is through private lands. One threat to all agency actions. Since these seven disseminated through Service surviving populations of these seven mussel species are aquatic throughout coordination with other agencies. The species appears to be pollutants in their life cycles, Federal actions that Service will work with State and stormwater runoff that originate from might affect these species and their Federal agencies, as well as private private land activities (see Factor A). habitats include those with impacts on property owners and other affected Therefore, the survival and recovery of stream channel geometry, bottom parties, through the recovery process to these mussels will be highly dependent substrate composition, water quantity identify stream reaches and potential on landowner cooperation in reducing and quality, and stormwater runoff. sites for reintroduction of these species. land use impacts. Controversy resulting Such activities would be subject to Thus, any benefit that might be from critical habitat designation has review under section 7(a)(2) of the Act, provided by designation of unoccupied been known to reduce private Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations 12685 landowner cooperation in the agency must enter into formal States of Alabama, Florida, and Georgia, management of species listed under the consultation with the Service. to provide for the needs of these States. Act (e.g., spotted owl, golden cheeked The Service notified Federal agencies Any allocation formula that might affect warbler). The Alabama sturgeon that may have programs which could the seven mussels will require section 7 experience suggests that critical habitat affect these species. Navigation consultation between the Corps and the designation could affect landowner maintenance on the Apalachicola River Service. cooperation within watersheds has the potential to impact the fat No other specific Federal actions were occupied by these seven mussels. threeridge and purple bankclimber. identified that would likely affect any of Based on the above analysis, the These species are concentrated in two the species. Federal activities for which Service has concluded critical habitat short reaches of the Apalachicola River potential effects to the species would be designation would provide little that have only minimal dredging reviewed include the issuance of additional benefit for these species requirements. The Service and the permits for reservoir construction, beyond those that would accrue from Corps have agreed on the following stream alterations, waste water facility listing under the Act. criteria to address potential navigational development, water withdrawal The Service also concludes that any impacts—(1) dredging and dredge projects, pesticide registration, potential benefit from such a material disposal can continue without agricultural assistance programs, designation would be offset by an further coordination with the Service in mining, road and bridge construction, increased level of vulnerability to all areas where these mussels were not Federal loan programs, water allocation, vandalism or collecting, and by a found during the status survey and in and hydropower relicensing. However, possible reduction in landowner areas where the Corps has dredged or it has been the experience of the Service cooperation to manage and recover disposed dredge material since 1991; that nearly all section 7 consultations these species. The designation of critical and (2) in areas that do not meet the first have been resolved so that the species criterion, the Corps will consult further has been protected and project habitat for these seven mussel species is with the Service to determine if objectives met. not prudent. modifications of their channel The Act and implementing Available Conservation Measures maintenance activities are needed to regulations found at 50 CFR 17.21 and protect the species. These further 17.31 set forth a series of general Conservation measures provided to consultations may require the Corps to prohibitions and exceptions that apply species listed as endangered or conduct additional mussel surveys prior to all endangered and threatened threatened under the Act include to initiating channel maintenance wildlife. These prohibitions, in part, recognition, recovery actions, activities. The Corps and the Service make it illegal for any person subject to requirements for Federal protection, and have established an effective working the jurisdiction of the United States to prohibitions against certain practices. relationship on this issue, and will take (includes harass, harm, pursue, Recognition through listing encourages make every effort to continue navigation hunt, shoot, wound, kill, trap, or collect; and results in conservation actions by maintenance while protecting listed or to attempt any of these), import or Federal, State, and local agencies, mussels. If conflict arises, potential export, ship in interstate commerce in private organizations, and individuals. measures for resolution include the course of commercial activity, or sell The Act provides for possible land relocation of the channel alignment, or offer for sale in interstate or foreign acquisition and cooperation with the disposal areas, or mussels. commerce any listed species. It is also States and requires that recovery actions A water supply reservoir is under illegal to possess, sell, deliver, carry, be carried out for all listed species. The consideration on Line Creek in the transport, or ship any such wildlife that protection required of Federal agencies upper Flint River system, in Cowetta has been taken illegally. Certain and the prohibitions against taking and and Fayette counties, Georgia. This exceptions apply to agents of the harm are discussed, in part, below. project would inundate historical Service and State conservation agencies. Section 7(a) of the Act, as amended, habitat for the shinyrayed pocketbook Permits may be issued to carry out requires Federal agencies to evaluate and oval pigtoe. The project applicant, otherwise prohibited activities their actions with respect to any species Fayette County, will need to secure a involving endangered and threatened that is proposed or listed as endangered permit pursuant to section 404 of the wildlife species under certain or threatened and with respect to its CWA. In survey efforts made subsequent circumstances. Regulations governing critical habitat, if any is being to the status survey, however, none of permits are at 50 CFR 17.22 and 17.32. designated. Regulations implementing these seven species were found, and Such permits are available for scientific this interagency cooperation provision there is very little suitable habitat in the purposes, to enhance the propagation or of the Act are codified at 50 CFR Part area to be affected by the proposed dam survival of the species, and/or for 402. Section 7(a)(4) requires Federal and reservoir. One live shinyrayed incidental take in connection with agencies to confer informally with the pocketbook was found several miles otherwise lawful activities. For Service on any action that is likely to downstream of the proposed dam site, threatened species, permits also are jeopardize the continued existence of a but the Service does not believe the available for zoological exhibition, proposed species or result in proposed project will affect this area. educational purposes, or special destruction or adverse modification of Therefore, listing of this species will not purposes consistent with the purposes proposed critical habitat. If a species is affect the project. of the Act. listed subsequently, Section 7(a)(2) of The Corps is responsible for operating It is the policy of the Service (59 FR the Act requires Federal agencies to the reservoirs and channel structures in 34272) to identify at the time of listing, ensure that activities they authorize, the ACF Basin for a variety of purposes, to the maximum extent practicable, fund, or carry out are not likely to including navigation, flood control, those activities that would not jeopardize the continued existence of water supply, fish and wildlife constitute a violation of section 9 of the such a species or to destroy or adversely resources, recreation, and hydropower. Act. The intent of this policy is to modify its critical habitat. If a Federal Water allocation formulae are being increase public awareness of the effect action may affect a listed species or its developed in conjunction with an of these listings on proposed and critical habitat, the responsible Federal Interstate Water Compact involving the ongoing activities within a species’ 12686 Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations range. During the public comment case-by-case basis to determine if a References Cited period, comments were received violation of section 9 of the Act may A complete list of all references cited questioning the effect these listings have occurred. The Service does not herein, as well as others, is available would have on private landowners (see consider these lists to be exhaustive and upon request from the Field Supervisor response to Issues 69, 76, and 81 in the provides them as information to the (see ADDRESSES section). ‘‘Summary of Comments and public. Recommendations’’ section), normal Questions regarding whether specific Author agricultural activities (see response to activities will constitute a violation of The primary author of this final rule Issue 84), silvicultural practices (see section 9 should be directed to the Field is Mr. Robert S. Butler, U.S. Fish and response to Issue 79), and commercial Supervisor of the Service’s Jacksonville, Wildlife Service, Asheville Field Office, fishing (see response to Issue 92). The Florida Field Office (see ADDRESSES 160 Zillicoa Street, Asheville, North Service believes, based on the best section) or the Field Supervisor of the Carolina 28801 (704/258–3939). available information as outlined in the Service’s Panama City, Florida Field List of Subjects in 50 CFR Part 17 ‘‘Summary of Comments and Office (U.S. Fish and Wildlife Service, Recommendations’’ section of this rule, 1612 June Avenue, Panama City, Florida Endangered and threatened species, that the aforementioned actions will not 32405, telephone 904/769–0552). Exports, Imports, Reporting and result in a violation of section 9 Requests for copies of the regulations on recordkeeping requirements, provided the activities are carried out in listed species and inquiries regarding Transportation. accordance with any existing prohibitions and permits should be Regulation Promulgation regulations, permit requirements, and addressed to the U.S Fish and Wildlife best management practices. The Service Service, Ecological Services, 1875 Accordingly, the Service amends part also believes that most other human Century Boulevard, Suite 200, Atlanta, 17, subchapter B of chapter I, title 50 of activities will not result in a section 9 Georgia 30345–3301 (404/679–7313). the Code of Federal Regulations, as violation. These include use of the river follows: by boaters, anglers, and other existing National Environmental Policy Act recreational uses. PART 17Ð[AMENDED] Activities that the Service believes The Fish and Wildlife Service has could potentially result in ‘‘take’’ of determined that an Environmental 1. The authority citation for part 17 these mussels include, but are not Assessment, as defined under the continues to read as follows: limited to, (1) unauthorized collection authority of the NEPA of 1969, need not Authority: 16 U.S.C. 1361–1407; 16 U.S.C. or capture of the species; (2) be prepared in connection with 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– unauthorized destruction or alteration regulations adopted pursuant to section 625, 100 Stat. 3500; unless otherwise noted. 4(a) of the Act. A notice outlining the of the species’ habitat (e.g., in-stream 2. Amend section 17.11(h) by adding Service’s reasons for this determination mining, channelization, discharge of fill the following, in alphabetical order was published in the Federal Register material); (3) violation of any discharge under CLAMS, to the List of Endangered on October 25, 1983 (48 FR 49244). or water withdrawal permit; and (4) and Threatened Wildlife: illegal discharge or dumping of toxic Required Determinations chemicals or other pollutants into § 17.11 Endangered and threatened waters supporting these species. This rule does not contain collections wildlife. Activities not identified in the above of information that require approval by * * * * * two paragraphs will be reviewed on a the OMB under 44 U.S.C. 3501 et seq. (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* CLAMS

******* Bankclimber, purple Elliptoideus U.S.A. (AL, FL, and NA ...... T 633 NA NA sloatianus. GA).

******* Moccasinshell, Gulf Medionidus U.S.A. (AL, FL, and NA ...... E 633 NA NA penicillatus. GA). Moccasinshell, Medionidus U.S.A. (FL and GA) NA ...... E 633 NA NA Ochlockonee. simpsonianus.

******* Pigtoe, oval ...... Pleurobema U.S.A. (AL, FL, and NA ...... E 633 NA NA pyriforme. GA).

******* Pocketbook, Lampsilis U.S.A. (AL, FL, and NA ...... E 633 NA NA shinyrayed. subangulata. GA).

******* Slabshell, Chipola .... Elliptio chipolaensis U.S.A. (AL and FL) NA ...... T 633 NA NA Federal Register / Vol. 63, No. 50 / Monday, March 16, 1998 / Rules and Regulations 12687

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* Threeridge, fat ...... Amblema neislerii ... U.S.A. (FL and GA) NA ...... E 633 NA NA

*******

Dated: January 23, 1998. U.S.C. 1801 et seq.) and the Atlantic issued under the Endangered Species Jamie Rappaport Clark, Tunas Convention Act (ATCA; 16 U.S.C. Act closed the drift gillnet sector of the Director, Fish and Wildlife Service. 971 et seq.). Regulations issued under swordfish fishery until August 1, 1998, [FR Doc. 98–6493 Filed 3–13–98; 8:45 am] the authority of ATCA carry out the to avoid jeopardizing the continued BILLING CODE 4310±55±P recommendations of ICCAT. existence of the North Atlantic right The regulations governing the whale (62 FR 63467, December 1, 1997). Atlantic swordfish fisheries at § 630.24 The longline/harpoon quota is further DEPARTMENT OF COMMERCE provide for a specified annual quota to divided into two equal semiannual be landed by the directed fishery. The quotas (1,060.6 mt dw) for the periods National Oceanic and Atmospheric annual quota is divided into two June 1 through November 30, and Administration semiannual quotas for each of the 6- December 1 through May 31. Based on month periods, June 1 through actual landings for December 1997 50 CFR Part 630 November 30, and December 1 through (169.5 mt dw) and January 1998 (208 mt [I.D. 021998C] May 31. NMFS is required, under dw), and using the highest reported § 630.25(a)(1), to monitor the catch and landings during the period between North and South Atlantic Swordfish landings statistics and, on the basis of 1995 to 1997 for February (365.8 mt dw) Fishery; Directed Fishery Closure these statistics, to project a date when and March (250.8 mt dw), this would the catch will equal the quota, and to give a total of 994.2 mt dw projected AGENCY: National Marine Fisheries announce the closure by publication in through the end of March, 1998, or Service (NMFS), National Oceanic and the Federal Register. ICCAT delineates 90.73 percent of the quota. Based on Atmospheric Administration (NOAA), Atlantic swordfish stocks north and logbook and tally sheet data from Commerce. south of 5° N. lat. On October 24, 1997 previous years, it is expected that the ACTION: Closure. (62 FR 55357), consistent with ICCAT’s second semiannual North Atlantic harvest quota will be reached in mid- SUMMARY: NMFS has projected that the recommendations, NMFS established a directed fishery quota for the second U.S. quota for the North Atlantic April, 1998. However, NMFS must semiannual 1997 North and South swordfish fishery of 2,464 metric tons account for delayed reporting and Atlantic swordfish season (December 1, dressed weight (mt dw), established a unpredictable catch levels and fishing 1997, to May 31, 1998) will be reached U.S. quota for the South Atlantic effort to reduce the risk of exceeding on or before March 31 and April 15, swordfish fishery of 188 mt dw, and U.S. swordfish quotas, which could 1998, respectively. Consequently, NMFS implemented the same management invoke ICCAT penalties. Due to late closes the directed fishery for the North measures for the South Atlantic reporting, which may take up to 6 Atlantic swordfish fishery effective swordfish fishery as were in place for months to correct, an additional factor March 31, 1998, and for the South the North Atlantic swordfish fishery of 65 mt dw is added to this estimate, Atlantic swordfish fishery effective (i.e., logbook reporting, permitting, giving a total of 1,059.2, or 99.86 April 15, 1998. The intent of this minimum size, transfer-at-sea, etc.). percent of the quota. Therefore, NMFS announces that the directed North closure is to prevent overharvest of the New ICCAT Compliance Measures quotas established by the International Atlantic swordfish fishery will close at In 1996, ICCAT recommended Commission for the Conservation of 6 p.m., local time, on March 31, 1998. compliance measures in which member Atlantic Tunas (ICCAT) for the directed All swordfish in excess of the incidental nations could be subject to restrictive North and South Atlantic Swordfish catch limit must be offloaded by the trade measures and reduced quotas Fishery. time of the closure. equal to a minimum of 125 percent of DATES Closure of the South Atlantic Swordfish : The closure is effective at 6 p.m., the excess harvest if North Atlantic Fishery local time, on March 31 through May swordfish quotas are repeatedly 31, 1998, for the North Atlantic exceeded. These measures were The 1997 quota for the South Atlantic swordfish fishery, and at 6 p.m., local recommended to be extended to the swordfish fishery is allocated solely to time, on April 15 through May 31, 1998, South Atlantic by ICCAT in 1997. the directed longline fishery quota and for the South Atlantic swordfish fishery. is divided into two equal semiannual FOR FURTHER INFORMATION CONTACT: Jill Closure of the North Atlantic Swordfish quotas of 94 mt, one for the period June Stevenson, 301-713-2347, or Buck Fishery 1 through November 30, and the other Sutter, 813-570-5447. The 1997 quota for the North Atlantic for the period December 1 through May SUPPLEMENTARY INFORMATION: The U.S. swordfish fishery of 2,464 mt dw is 31, with no incidental harvest allowed Atlantic swordfish fishery is managed divided between the directed fishery following a closure of the fishery. under the Fishery Management Plan for (2,164 mt dw) and the incidental fishery Landings of swordfish in the South Atlantic Swordfish and its (300 mt dw). The annual quota for the Atlantic swordfish fishery in the second implementing regulations at 50 CFR part directed fishery is subdivided into semiannual season totaled 20.12 mt dw 630 under the authority of the longline/harpoon and drift gillnet as of January, 1998. Reporting of Magnuson-Stevens Fishery quotas, with allocations of 2,121.2 and swordfish landings by U.S.-flagged Conservation and Management Act (16 42.8 mt dw, respectively. A final rule vessels in Atlantic waters south of 5° N