59798 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules for inspection and copying during Avery, Caldwell, and Watauga Counties, Comments and materials received, as normal business hours in the FCC ; and (3) portions at and well as supporting documentation used Reference Center 445 12th Street, SW., above 1,646 m (5,400 ft) in elevation at in preparation of this proposed rule, Washington, DC. The complete text of Roan Mountain, Avery and Mitchell will be available for public inspection, this decision may also be purchased Counties, North Carolina, and Carter by appointment, during normal business from the Commission’s copy contractor, County, . All of the areas on hours at the above address. International Transcription Services, or in the vicinity of Mount LeConte, FOR FURTHER INFORMATION CONTACT: John Inc., (202) 857–3800, 1231 20th Street, Mount Collins, , and A. Fridell, Fish and Wildlife Biologist NW., Washington, DC 20036. Mount Buckley that are proposed for (see ADDRESSES section). Provisions of the Regulatory critical habitat designation are within SUPPLEMENTARY INFORMATION: Flexibility Act of 1980 do not apply to the boundaries of the GSMNP; all of the this proceeding. areas of Roan Mountain that are Background Members of the public should note proposed for critical habitat designation Taxonomy and Description that from the time a Notice of Proposed are within the boundaries of the Pisgah The spruce-fir moss spider Rule Making is issued until the matter National Forest in North Carolina and Microhexura montivaga) was originally is no longer subject to Commission the Cherokee National Forest in described by Crosby and Bishop (1925) consideration or court review, all ex Tennessee; and the areas of Grandfather based on collections made in 1923 from parte contacts are prohibited in Mountain that are proposed for critical in western North Commission proceedings, such as this habitat designation are privately owned. Carolina, the highest point in eastern one, which involve channel allotments. If this proposal is made final, section North America. Only a few specimens See 47 CFR 1.1204(b) for rules 7(a)(2) of the Act requires that Federal were taken, and little was known about governing permissible ex parte contacts. agencies ensure that actions they fund, the species until its ‘‘rediscovery’’ on For information regarding proper authorize, or carry out are not likely to Mount Mitchell, approximately 50 years filing procedures for comments, see 47 result in the destruction or adverse later by Dr. Frederick Coyle (Western CFR 1.415 and 1.420. modification of critical habitat. The Carolina University) and Dr. William Federal Communications Commission. regulatory impact of critical habitat Shear (Hampden-Sydney College) Barbara A. Kreisman, designation does not extend beyond (Coyle 1981). The subsequent work Chief, Video Services Division, Mass Media those activities funded, permitted, or (Coyle 1981, 1985, 1997, 1999; Harp Bureau. carried out by Federal agencies. State or 1991, 1992) represents the bulk of what [FR Doc. 00–25739 Filed 10–5–00; 8:45 am] private actions, with no Federal is presently known of the biology, involvement, are not affected. BILLING CODE 6712±01±P habitat, behavior, range of, and threats Section 4 of the Act requires us to to, the spider. consider the economic and other The spruce-fir moss spider belongs to DEPARTMENT OF THE INTERIOR relevant impacts of specifying any the genus Microhexura in the family particular area as critical habitat. We Dipluridae. Diplurids are in the Fish and Wildlife Service solicit data and comments from the primitive spider suborder public on all aspects of this proposal, Mygalomorphae, which are often 50 CFR Part 17 including data on the economic and referred to as ‘‘tarantulas’’ due to the other impacts of the designation. We inclusion of the large, hairy spiders of RIN 1018ÐAG38 may revise this proposal to incorporate the family Theraphosidae. Only two or address comments and other Endangered and Threatened Wildlife genera of Dipluridae, Euagrus and information received during the and Plants; Proposed Designation of Microhexura, are found in the United comment period. Critical Habitat for the Spruce-fir Moss States. Species in the genus Euagrus are Spider DATES: We will consider comments medium to large spiders that build their received by December 5, 2000. We must silk sheets and funnels in rocky AGENCY: Fish and Wildlife Service, receive requests for public hearings, in situations in the arid Southwest. The Interior. writing, at the address shown in the genus Microhexura is the northernmost ACTION: Proposed rule. ADDRESSES section by November 20, representative of the family Dipluridae, 2000. and contains only two species—the SUMMARY: We, the U.S. Fish and spruce-fir moss spider (M. montivaga) Wildlife Service (Service), propose to ADDRESSES: If you wish to comment, and one with no common name (M. designate critical habitat for the spruce- you may submit your comments by any idahoana) (Chamberlin and Ivie). The fir moss spider (Microhexura one of several methods: two are distinguished by geographic montivaga) under the Endangered 1. You may submit written comments distribution and by features of the male Species Act of 1973, as amended (Act). and information to the State Supervisor, genitalia (Coyle 1981). Otherwise, they The proposed designation of critical Asheville Field Office, U.S. Fish and appear to be similar in both appearance habitat for the spruce-fir moss spider Wildlife Service, 160 Zillicoa Street, and habits (Service 1998). Microhexura includes—(1) Areas at and above 1,646 Asheville, North Carolina 28801. idahoana is found in conifer forests in meters (m) (5,400 feet (ft)) in elevation 2. You may hand-deliver written the Pacific Northwest (Coyle 1981). The in the National comments to our Asheville Field Office, spruce-fir moss spider (M. montivaga) is Park (GSMNP) on and/or in the vicinity at the above address or fax your known only from conifer forests in the of Mount LeConte in Sevier County, comments to 828/258–5330. mountains of North Carolina and Tennessee, and Mount Collins, 3. You may send comments by Tennessee (Coyle 1981, 1997, 1999; Clingmans Dome, and Mount Buckley in electronic mail (e-mail) to Harp 1991, 1992; Service 1995, 1998). Swain County, North Carolina, and [email protected]. For directions on The spruce-fir moss spider is the Sevier County, Tennessee; (2) areas at how to submit electronic filing of smallest of the mygalomorph spiders, and above 1,646 m (5,400 ft) in comments, see the ‘‘Public Comments with adults measuring only 2.5 to 3.8 elevation at in Solicited’’ section. millimeters (0.10 to 0.15 inch) in length

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(Coyle 1981, Service 1995). The species’ the spruce-fir moss spider is privately Population and microhabitat coloration ranges from light brown to a owned and is managed by The Nature estimates are not available for the darker reddish brown, and there are no Conservancy through an agreement with Grandfather Mountain, Mount Buckley, markings on the abdomen (Harp 1992). the landowner. or Roan Mountain populations of the The carapace (hard covering over the Recent work by Coyle (1997) indicates spruce-fir moss spider. However, front part of the body) is generally that Mount LeConte currently supports existing data indicate that the yellowish brown (Harp 1992). The most the healthiest of the surviving Grandfather Mountain population is reliable field identification populations of the spruce-fir moss restricted to small patches of suitable characteristics for the species are spider. In his study of the species on microhabitat occurring on a single rock chelicerae (fangs) that project forward Mount LeConte, Coyle (1997) recorded outcrop and a nearby boulder (Harp well beyond the anterior (front) edge of the species from four small, separate 1992; pers. observation 1995). The the carapace, a pair of very long areas of rock outcrop (approximately Mount Buckley population is restricted posterior spinnerets (organ for 0.10 hectare [0.25 acre], 0.15 hectare to scattered patches of suitable producing threads of silk), and the [0.38 acre], 0.25 hectare [0.63 acre], and microhabitat on separate rock outcrop presence of a second pair of book lungs 0.50 hectare [1.25 acres] in size) and sites within an area roughly 0.20 hectare that appear as light patches posterior to estimated that the largest three of these (0.5 acre) in size. On Roan Mountain, the genital furrow (Harp 1992; Coyle, in areas support a population of Coyle (1999) recorded scattered litt. 1994; Service 1995). approximately 5,000 individuals. He occurrences of the spruce-fir moss estimated that the 0.25-hectare site Distribution, Habitat, and Life History spider at 12 small, separate rock outcrop provided a total of approximately 12 sites but found more than two spiders Microhexura montivaga is known square meters (m2) (roughly 133 square living in the same discrete patch of from only the highest mountain peaks feet) of suitable microhabitat, and the moss/liverwort on only three occasions. (at and above 1,646 m (5,400 ft) in 0.15-hectare site provided He found four spiders in an 800 square 2 elevation) in the Southern Appalachian approximately 7 m (78 square feet) of centimeters (sq cm) (approximately 1.0 Mountains of North Carolina and suitable microhabitat for the spruce-fir square feet (sq ft)) patch of liverwort at Tennessee. It has been recorded from moss spider. Measurements of likely one site, five spiders in a 900 sq cm (1.2 Mount Mitchell, Yancey County, North suitable microhabitat have not yet been sq ft) patch of moss at another site, and Carolina; Grandfather Mountain, made at the other two sites on Mount four spiders in a 900 sq cm (1.2 sq ft) Watauga, Avery, and Caldwell Counties, LeConte. patch of moss at the third site. He North Carolina; Mount Collins, Swain The typical microhabitat of the reported that, at none of these three County, North Carolina; Clingmans spruce-fir moss spider appears to be sites, nor at any other sites on Roan Dome, Swain County, North Carolina; associated with moderately thick and Mountain where he found the spider, Roan Mountain, Avery and Mitchell humid, but well-drained, moss and were they able to find additional spiders Counties, North Carolina, and Carter liverwort mats growing in sheltered with ease and that the spruce-fir moss County, Tennessee; Mount Buckley, spots on surfaces of rock outcrops and spider population densities on Roan Sevier County, Tennessee; and Mount boulders in mature high-elevation Mountain were clearly not as high as LeConte, Sevier County, Tennessee. forests dominated by Fraser fir (Abies those observed at some of the sites on Recent and ongoing surveys funded fraseri) (Coyle 1981, 1997, 1999; Harp Mount LeConte. As stated above, by the National Park Service (NPS), U.S. 1991, 1992; Service 1998). The portions individual spruce-fir moss spiders (one Forest Service (USFS), and us indicate of the moss mats supporting the spruce- each) have been observed in recent that reproducing populations of the fir moss spider are generally from 1 to years on Mount Collins and on spruce-fir moss spider still survive on 4 centimeters (cm) thick (roughly 0.5 to Grandfather Mountain in North Carolina 1.25 inches) and are well-shaded (Coyle Clingmans Dome, indicating extremely (Harp 1992; pers. observation 1995; Jane 1981, 1997, 1999; Harp 1991, 1992; low population levels. Coyle (in litt. Thompson, The Nature Conservancy, Service 1998). They cannot be too dry, 1991) reported that the spruce-fir moss pers. comm. 1997); Mount LeConte in because the spider is quite sensitive to spider was common at a site on Tennessee (Coyle 1997); and Mount desiccation (drying out), nor can they be Clingmans Dome as late as 1983 but was Buckley (Coyle, pers. comm. 2000) and too wet (Coyle 1997, 1998; Harp 1991, extremely rare by 1988, which he Roan Mountain in North Carolina and 1992). The humidity levels required by suspected was largely due to Tennessee (Coyle 1999). The Mount the spruce-fir moss spider have yet to be deterioration of the forest canopy at the Mitchell population is believed to be determined. In a study of the spruce-fir site. extirpated (Harp 1992), and both the moss spider on the Roan Mountain, The moss species associated with Mount Collins and Clingmans Dome Coyle (1999) reported that the moss/ occurrences of the spruce-fir moss populations, if still present, are liverwort mats in which spruce-fir moss spider have been identified by David K. extremely small, with only one spruce- spiders were found were—(1) sheltered Smith, Botany Department, University fir moss spider having been found at from the sun and the rain; (2) typically of Tennessee at Knoxville, as each of these two sites in recent years not far above either the ground or a Polytrichum pallidesetum Funck (Harp (Harp 1991, 1992). The occurrences of horizontal ledge with accumulated soil; 1991, 1992), Dicranodontium the species on Mount LeConte, Mount (3) included a thin layer of humid soil denudatum (Brid.) E. G. Britt ex Collins, Clingmans Dome, and Mount and/or humus (decayed vegetation and Williams (Harp 1992; Coyle 1997, 1999), Buckley are all within the boundaries of other organic material) between the and D. asperulum (Mitt.) Broth. (Coyle the GSMNP, administered by the NPS. moss and rock surface; (4) moderately 1997, 1999). In addition, Coyle (1999) The sites supporting the species on thick (1 to 3 centimeters (0.5 to 1 inch); reported finding the spruce-fir moss Roan Mountain are within the and (5) humid but not wet. He reported spider on two occasions in liverwort boundaries of the Pisgah National Forest that, clearly, most rock outcrop surfaces, mats (species was not identified) on in North Carolina and the Cherokee even those covered by bryophytes rock outcrops. However, on both Mount National Forest in Tennessee, and are (mosses, liverworts, etc.), do not meet LeConte and Roan Mountain, Coyle managed by the USFS. The area on these microhabitat requirements and do (1997, 1999 respectively) found the Grandfather Mountain that still supports not support the spruce-fir moss spider. spruce-fir moss spider most often in

VerDate 112000 16:06 Oct 05, 2000 Jkt 194001 PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 E:\FR\FM\06OCP1.SGM pfrm02 PsN: 06OCP1 59800 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules association with mosses in the genus species (Coyle, in litt., 1991; Coyle 1997, long distances. Even short-range Dicranodontium. Though Harp (1991, 1999). dispersal between moss mats has not 1992) reported finding the spruce-fir Coyle (1981, 1997) describes the webs been documented for this species. Pit moss spider on Mount LeConte in of the spruce-fir moss spider as silk fall trap and Berlese funnel sampling mosses identified as Polytrichum tubes sandwiched between the interface done in the area of the Mount LeConte pallidesetum, Coyle was unable to find of the moss mat and boulder surface. population did not yield any specimens the spider on either Mount LeConte or The tubes are thin-walled and are of the spruce-fir moss spider (Lambden Roan Mountain in mosses in this genus. typically broad and flattened, with short et al. 1994). The association between the spruce-fir side branches. Some of the tubes Possible predators and competitors of moss spider and mosses in the genus occasionally extend into crevices in the the spruce-fir moss spider include Dicranodontium is noteworthy, because rock or litter (Coyle 1997) or the pseudoscorpions, centipedes, carabid mosses in this genus are much less vegetative interior of the moss mat beetles, and other spiders. A number of common than many other rock surface (Harp 1991, 1992). other species of spiders are commonly mosses (Coyle 1999). The spruce-fir moss spider has not found in the same moss as the spruce- While humid, well-drained moss/ been observed taking prey in the wild, fir moss spider (Service 1998). nor is there any record of prey having liverwort mats on inclined, well-shaded Threats surfaces of rock outcrops and boulders been found in spruce-fir moss spider The majority of the high-elevation appear to be the optimal microhabitat webs. The abundant springtails (small spruce-fir forests of the Southeast have for the spruce-fir moss spider, it has wingless insects in the order suffered extensive changes and declines also, on occasion, been found: (1) Under Collembola) found in moss mats with in size and/or vigor during the past moss and litter mats at the base of rock the spiders provide the most likely century, likely as a result of a number outcrops (Coyle 1981); (2) under moss source of food. The spiders have been of factors, including storm damage, site on loose rock at the base of rock observed to take springtails in captivity deterioration due to the logging and outcrops; (3) in litter/humus under flat (David Hodge, Louisville Zoological Park, pers. comm. 1992). burning practices of early 1900s (Peart rocks lying on the ground in well- Mating behavior has been described et al. 1992), atmospheric pollution shaded situations in the vicinity of rock in detail (Coyle 1985). Females of the (Johnson et al. 1992), exposure shock outcrops; and (4) on well-drained, well- spruce-fir moss spider are known to lay (Nicholas et al. 1992), climate changes, shaded ground in or under needle and/ eggs in June (Coyle 1981). The egg sac and other factors not yet fully or heath litter and moss in the vicinity of the species is thin-walled, nearly understood. However, the primary of rock outcrops (Coyle 1997). transparent, and generally contains only threat to, and reason for, the recent The species has also rarely been 7 to 9 eggs (Coyle 1981). The female decline of the spruce-fir moss spider at found in moss mats on tree trunks remains with the egg sac and, when all of the sites from which it has been (Coyle 1981) and moss mats on logs disturbed, will carry the sac with her recorded appears to be associated with (Harp 1992), though Coyle has been fangs. Coyle (1997) hypothesized that the loss of suitable moss habitat, due unable to find the species in either of the ability of the female to move the egg primarily to the loss of mature Fraser these habitat types in his recent surveys sac may be useful not only in protecting firs (Coyle, in litt., 1991, 1999; Harp for the species (Coyle, 1997, 1999; pers. the eggs from predators but also in 1991, 1992; Service 1998). The spruce- comm. 2000). repositioning the egg sac to protect it fir moss spider appears to be very An ongoing study of spiders of the from microhabitat changes within the sensitive to desiccation and requires GSMNP by Coyle and recent surveys of web. Development and evaporative situations of high and constant the spruce-fir moss spider on Mount water loss by early instar (a stage humidity. The loss of mature Fraser firs, LeConte (Coyle 1997) and Roan between molts) spiderlings within the the dominate canopy species in the Mountain (Coyle 1999) support earlier egg sac are likely dependent on forest stands where the spider has been findings (Coyle 1981; Harp 1991, 1992) temperature and humidity levels. The found, leading to increased light and that the microhabitat of the spruce-fir spiderlings emerge during September temperature and decreased moisture on moss spider is virtually restricted to (Coyle 1981). It has been estimated that the forest floor (resulting in drying out certain areas of rock outcrops and it may take at least two to three years of the moss mats), appears to be the boulders in Fraser fir and/or fir- for spruce-fir moss spiders to reach major cause for the loss of the spruce- dominated spruce-fir forests. The Fraser maturity (Coyle 1985). The life span of fir moss spider on Mount Mitchell and fir is the only species of fir native to the the spruce-fir moss spider is currently the recent decline of the Mount Collins, Southeastern United States (Burns and unknown. Many species of spiders live Clingmans Dome, and a portion of the Honkala 1990). In his study of the for only one season. But, like other Mount LeConte populations (Harp 1991, population of the spruce-fir moss spider ‘‘tarantulas,’’ spruce-fir moss spiders 1992). It is also likely the major factor on Mount LeConte, Coyle (1997) molt (shed their skin) continuously limiting the species’ distribution on reported finding the species ‘‘only in through life, which means they can keep Roan Mountain, Grandfather Mountain, stands containing many old (well over growing and can live for several years. and Mount Buckley. Mature Fraser firs 25 years of age) fir trees and in areas Modes of dispersal of spiderlings from on all of these mountains have suffered where patches of fir containing old fir the parental moss mats are unknown. extensive mortality in the last few trees interface with heath Ballooning is a possibility since males decades, primarily due to infestation by communities.’’ In both situations he of M. idahoana have been collected as the balsam wooly adelgid (Adelges found the species only on or in the ‘‘windblown fallout’’ on snow fields on picea (Ratzeburg) (Homoptera, vicinity of rock outcrops. In his work on Mt. Rainier (Coyle 1981). Ballooning Adelgidae)). The balsam wooly adelgid Roan Mountain, Coyle (1999) found the spiders use a sheet of silk played out is a nonnative insect pest believed to species only on rock outcrops in fir into a wind current as a kite to carry have been introduced into the forests or fir-dominated areas of spruce- them into the air. Ballooning spruce-fir Northeastern United States from Europe fir forests. Searches for the spruce-fir moss spiders have not been collected. If around 1900 (Kotinsky 1916, Eagar moss spider in other habitat types have they do balloon, they would be capable 1984). The adelgid was first detected in failed to locate occurrences of the of an effective mode of dispersal over North Carolina on Mount Mitchell (the

VerDate 112000 16:06 Oct 05, 2000 Jkt 194001 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 E:\FR\FM\06OCP1.SGM pfrm02 PsN: 06OCP1 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules 59801 type locality for the spruce-fir moss proposed for Federal listing. We Tennessee, February 11, 1994. We spider) in 1957 (Speers 1958), though it received ten written comments. The received ten written comments. Six of was likely established at that site as NPS, the North Carolina Division of them expressed strong support for the early 1940. From Mount Mitchell, the Parks and Recreation, and three private findings presented in the proposed rule adelgid spread to the Fraser fir stands individuals (including the owner of the and listing of the species as proposed; throughout the Southern Appalachians site containing the Avery/Caldwell three either expressed concurrence with (Eagar 1984). All ages of fir trees are County, North Carolina, population) the data presented in the proposed rule attacked by the adelgid, but damage is expressed strong support for the and/or provided additional information generally minimal until the trees reach potential listing of the spruce-fir moss but expressed neither support for nor maturity, at around 30 years of age spider as an endangered species. The opposition to the listing; and one (Hoffard et al. 1990). Most mature Fraser U.S. Soil Conservation Service, comment opposed the listing, stating firs are easily killed by the adelgid Tennessee Wildlife Resources Agency, that the ‘‘scientific community, and the (Amman and Speers 1965), with death Tennessee Department of Environment Service in particular, needs to recognize occurring within 2 to 7 years of the and Conservation, Tennessee Valley that extinction has always been a initial infestation (Eagar 1984). The Authority, and the North Carolina continuing process and will continue to death of the fir trees and the resultant Department of Agriculture stated that be so.’’ opening of the forest canopy causes the they had no new or additional Following our review of all the remaining trees to be more susceptible information on the species or threats to comments and information received to wind and other storm damage. The its continued existence. We received no throughout the listing process, by final adelgid is transported and spread comments opposing the potential listing rule (60 FR 6968) dated February 6, primarily by the wind but may also be of the spruce-fir moss spider. 1995, we listed the spruce-fir moss spread by contaminated nursery stock; On August 30, 1993, we classified the spider as endangered. We addressed all on the fur or feathers of animals; or by spruce-fir moss spider as a category 1 the comments received throughout the humans on contaminated clothes, candidate based on the results of status listing process and/or incorporated equipment, or vehicles (Eagar 1984). All surveys, funded by the NPS and us, changes into the final rule as efforts to control the spread of the documenting significant habitat loss and appropriate. That decision included a adelgid have failed thus far. increased threats to the species determination that the designation of All existing data (Coyle 1981, 1997, throughout its range (Harp 1991, 1992). critical habitat was not prudent for the 1999; Harp 1991, 1992) indicate that At that time, category 1 represented spruce-fir moss spider because, after a suitable habitat for the spruce-fir moss those species for which we had review of all the available information, spider is extremely limited and substantial information on biological we determined that such designation restricted to small areas of rock outcrops vulnerability and threats to support would not be beneficial to the species occurring in forest stands dominated by proposals to list them as endangered or and that designation of critical habitat fir trees, providing the shelter and threatened species. could further threaten the spider (see organic substrata required by the spider. On January 27, 1994, we published in ‘‘Prudency Determination’’ section). This restricted range of each of the the Federal Register (59 FR 3825) a On June 30, 1999, the Southern surviving populations of the spruce-fir proposal to list the spruce-fir moss Appalachian Biodiversity Project and moss spider also makes it extremely spider as an endangered species without the Foundation for Global Sustainability vulnerable to extirpation from a single designating critical habitat. The filed a lawsuit in United States District event or activity, such as a severe storm, proposal provided information on the Court for the District of Columbia wildfire, land-clearing or timber species’ range, biology, status, and against the Service, the Director of the operation, pesticide/herbicide threats to its continued existence and a Service, and the Secretary of the application, etc. In addition, the spider proposed determination that Department of the Interior, challenging and the moss mats it inhabits are very designation of critical habitat was not the not prudent critical habitat fragile and easily destroyed by human prudent for the species because such determinations for four species in North trampling or other disturbance. Many of designation would not be beneficial and Carolina—the spruce-fir moss spider, the high-elevation areas where the could further threaten the spruce-fir Appalachian elktoe (Alasmidonta spider occurs are frequented by tens of moss spider. Through associated raveneliana), Carolina heelsplitter thousands of visitors each year. Coyle notifications, we invited comments on (Lasmigona decorata), and rock gnome (1999) suggested that boulder climbing the proposal and factual reports or lichen (Gymnoderma lineare). On by visitors may have been one of the information that might contribute to the February 29, 2000, the U.S. Department factors contributing to the scarcity of development of a final rule. We of Justice entered into a settlement suitable moss habitat for the spider in contacted and requested comments from agreement with the plaintiffs in which areas on Roan Mountain. Because of appropriate Federal and State agencies, we agreed to reexamine our prudency their small size, disturbance of the moss county governments, scientific determination and submit to the Federal mats or damage to the surrounding organizations, individuals Register, by October 1, 2000, if vegetation shading the mats could result knowledgeable about the species or its appropriate, withdrawal of the existing in the extirpation of entire spruce-fir habitat, and other interested parties. We not prudent determination, together moss spider populations and/or published a legal notice, which invited with a new proposed critical habitat population fragments. general public comment, in the determination. If, upon consideration of following newspapers: The Avery all available information and comments, Previous Federal Actions Journal, Newland, North Carolina, we determine that designating critical On December 31, 1992, we notified February 10, 1994; the News-Topic, habitat is not prudent for the spruce-fir (in writing) appropriate Federal, State, Lenoir, North Carolina, February 10, moss spider, we have agreed to submit and local government agencies, 1994; the Watauga Democrat, Boone, a notice of that finding to the Federal landowners, and individuals North Carolina, February 16, 1994; the Register by April 1, 2001. If we knowledgeable about this or similar Smoky Mountain Times, Bryson City, determine that designation of critical species that a status review was being North Carolina, February 10, 1994; and habitat is prudent for the spruce-fir conducted and that the species might be the Mountain Press, Sevierville, moss spider, we have agreed to send a

VerDate 112000 16:06 Oct 05, 2000 Jkt 194001 PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 E:\FR\FM\06OCP1.SGM pfrm02 PsN: 06OCP1 59802 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules final rule of this finding to the Federal by reducing the reproduction, numbers, Ninth Circuit ruled that the Service Register by July 1, 2001. or distribution of that species. must balance, in order to invoke the This proposal is the product of our ‘‘Destruction or adverse modification’’ is ‘‘increased threat rationale,’’ the threat reexamination of our prudency defined as a direct or indirect alteration against the benefit to the species of determination for the spruce-fir moss that appreciably diminishes the value of designating critical habitat 113 F. 3d spider and reflects our interpretation of critical habitat for both the ‘‘survival 1121, 1125 (9th Cir. 1997). the recent judicial opinions on critical and recovery’’ of a listed species. These We continue to be concerned that the habitat designation and the standards regulations require that the adverse spruce-fir moss spider is extremely placed on us for making a ‘‘not prudent’’ modification or destruction of critical vulnerable to unrestricted collection or determination. If additional information habitat analysis, like the jeopardy disturbance of its habitat and that these becomes available on the species’ analysis, consider the detrimental threats might be increased by the biology and distribution and threats to effects of a proposed Federal action to publication of critical habitat maps and the species, we may reevaluate this both the survival and recovery of the further dissemination of location and proposal to designate critical habitat, listed species. Because of the extremely habitat information. However, at this including proposing additional critical restricted range and limited amount of time we do not have specific evidence habitat, proposing the deletion or suitable habitat available to the spruce- of taking, collection, trade, or other boundary refinement of existing fir moss spider, we determined in the unauthorized human disturbance of the proposed critical habitat, or February 6, 1995, final rule that any spruce-fir moss spider or any similarly withdrawing our proposal to designate action that would likely result in the situated species. Furthermore, we critical habitat. destruction or adverse modification of acknowledge that some educational or informational benefit may derive from Prudency Determination the species’ habitat would also likely jeopardize the species’ continued designation. Consequently, we hereby Section 4(a)(3) of the Act and existence. Since Federal actions propose to withdraw our previous implementing regulations (50 CFR resulting in jeopardy are also prohibited determination that the identification of 424.12) require that, to the maximum by section 7, we determined that critical habitat can be expected to extent prudent and determinable, we designation of critical habitat would not increase the degree of threat to the designate critical habitat at the time a provide any additional protection species. species is determined to be endangered benefitting the species beyond that Courts also have ruled that, in the or threatened. Regulations under 50 CFR provided by the jeopardy standard. absence of a finding that the designation 424.12(a)(1) state that designation of Further, although we had no of critical habitat would increase threats critical habitat is not prudent when one documented evidence of collecting or to a species, the existence of another or both of the following situations other human disturbance (prior to type of protection besides designation, exist—(1) The species is threatened by publication of the proposed rule to list even if it offers potentially greater taking or other activity and the this tiny tarantula as endangered, the protection to the species, does not identification of critical habitat can be species was largely unknown to the justify a not prudent finding expected to increase the degree of threat general public), we were concerned that Conservation Council for Hawaii v. to the species or (2) such designation of the rarity and uniqueness of this spider Babbitt 2 F. Supp. 2d 1280. critical habitat would not be beneficial could generate interest in the species. Accordingly, we withdraw our previous to the species. In our February 6, 1995, The low numbers, slow reproductive determination that designation of final rule, we determined that both rate, and restricted range of the spruce- critical habitat will not benefit the situations applied to the spruce-fir moss fir moss spider make it unlikely that its spruce-fir moss spider. It is true that we spider. populations could withstand even are already working with the NPS, A critical habitat designation has no moderate collecting pressure (adapted USFS, the owner of Grandfather effect on situations where a Federal from Harp 1992) or the habitat Mountain, and others in carrying out agency is not involved. The regulations disturbance that would result from research and conservation activities for that provide protection for critical people visiting its habitat. Accordingly, the spruce-fir moss spider, and these habitat come into play through section in the 1995 final rule, we determined entities are fully aware of the species’ 7 of the Act. Requirements under that the designation of critical habitat, location and habitat requirements, as section 7 of the Act apply only to and the associated publication of maps currently known. However, as stated Federal actions and activities. They and descriptions of critical habitat, above, some educational or require Federal agencies to ensure, in could increase the vulnerability of the informational benefit may result from consultation with us, that activities they species to collecting or other designating critical habitat. Therefore, fund, authorize, or carry out are not disturbance. we propose that designation of critical likely to jeopardize the continued However, in the past few years, habitat is prudent for the spruce-fir existence of listed species or result in several of our determinations that the moss spider. the destruction or adverse modification designation of critical habitat would not of designated critical habitat. be prudent have been overturned by Critical Habitat Regulations for the implementation of court decisions. For instance, in Critical habitat is defined in section section 7 of the Act (50 CFR 402.2) Conservation Council for Hawaii v. 3(5)(A) of the Act as (i) the specific areas provide for both a ‘‘jeopardy’’ standard Babbitt, the United States District Court within the geographic area occupied by and an ‘‘adverse modification or for the District of Hawaii ruled that the the species on which are found those destruction of critical habitat’’ standard. Service could not rely on the ‘‘increased physical or biological features (I) 50 CFR 402.2 defines ‘‘jeopardize the threat’’ rationale for a ‘‘not prudent’’ essential to the conservation of the continued existence of’’ as meaning to determination without specific evidence species and (II) that may require special engage in an action that would of the threat to the species at issue 2 F. management considerations or reasonably be expected, directly or Supp. 2d 1280 (D. Hawaii 1998)). And protection; and (ii) specific areas indirectly, to appreciably reduce the in Natural Resources Defense Council v. outside the geographical area occupied likelihood of both the ‘‘survival and U.S. Department of the Interior, the by the species at the time it is listed, recovery’’ of a listed species in the wild United States Court of Appeals for the upon a determination that such areas

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Areas outside the geographic habitat for the spruce-fir moss spider rather than attempt to identify each area currently occupied by the species accordingly. individual site separately. shall be designated as critical habitat Primary Constituent Elements Regulations at 50 CFR 424.12(c) only when a designation limited to its require that we define the specific limits present range would be inadequate to In accordance with section 3(5)(A)(i) of critical habitat by using reference ensure the conservation of the species. of the Act and the regulations at 50 CFR points and lines as found on standard ‘‘Conservation’’ is defined in section 424.12, in determining which areas to topographic maps of the area(s). Because 3(3) of the Act as the use of all methods propose as critical habitat, we are of the small size and limited number of and procedures necessary to bring required to base critical habitat suitable habitat patches and for ease of endangered or threatened species to the determinations on the best scientific reference, we did not map critical point at which listing under the Act is and commercial data available and to habitat in sufficient detail to exclude no longer necessary. Regulations (50 consider those physical and biological lands unlikely to contain all of the CFR 424.02 (j)) define ‘‘special features (primary constituent elements) primary constituent elements essential management considerations or that are essential to the conservation of for conservation of the spruce-fir moss the species and that may require special protection’’ to mean any methods or spider. Consequently, the areas we are management considerations and procedures useful in protecting physical proposing as critical habitat include protection. Such requirements include, and biological features of the areas of unsuitable habitat, for example, but are not limited to: space for environment for the conservation of fir or fir-dominated forests without rock individual and population growth and listed species. outcrops, rock outcrops without suitable for normal behavior; food, water, air, Section 4(b)(2) of the Act requires that moss or liverwort mats, spruce or light, minerals, or other nutritional or we base critical habitat designations on hardwood forests with or without rock physiological requirements; cover or the best scientific and commercial data outcrops, areas dominated by early shelter; sites for breeding, reproduction available, after taking into consideration herbaceous vegetation, and other habitat and rearing of offspring; and habitats the economic impact, and any other types that do not provide the habitat or relevant impact, of specifying any that are protected from disturbance or microhabitat required by the spider. particular area as critical habitat. We are representative of the historic Federal actions limited to these other may exclude areas from critical habitat geographical and ecological habitat types, therefore, would not designation when the benefits of distributions of a species. trigger a section 7 consultation. Please excluding those areas outweigh the When considering areas for note, however, that any activity benefits of including the areas within designation as critical habitat, we are authorized, funded, or carried out by a the critical habitat, provided the required to focus on the principal Federal agency that has a potential to exclusion will not result in the biological or physical constituent affect the constituent elements of extinction of the species. elements within the defined area that are essential to the conservation of the designated critical habitat or to destroy Methods species (50 CFR 424.12(b)). Although or adversely modify areas proposed as The proposed areas of critical habitat additional information is needed to critical habitat, regardless of the described below constitute our best better define the habitat requirements of activity’s location in relation to assessment of the areas needed for the the species, particularly the designated or proposed critical habitat, conservation and recovery of the spruce- microhabitat requirements, based on the will require a consultation or fir moss spider in accordance with the best available information, the primary conference, respectively, with us, as goals outlined in our recovery plan for constituent elements essential for the required under the provisions of section the species (Service 1998), and are conservation of the spruce-fir moss 7 of the Act (see ‘‘Effects of Critical based on the best scientific and spider are: Habitat Designation’’ section). commercial information currently 1. Fraser fir or fir-dominated spruce- Proposed Critical Habitat Designation available to us concerning the species’ fir forests at and above 1,646 m (5,400 known present and historic range, ft) in elevation. Proposed critical habitat includes habitat, biology, and threats. All of the 2. Moderately thick and humid, but spruce-fir moss spider habitat areas we propose to designate as critical not wet, moss (species in the genus throughout the species’ existing range in habitat are within what we believe to be Dicranodontium, and possibly the United States. Lands proposed are the geographic area occupied by the Polytrichum) and/or liverwort mats on under private and Federal ownership. spruce-fir moss spider and include all rock surfaces that are adequately Lands proposed as critical habitat have known surviving occurrences of the sheltered from the sun and rain (by been divided into four critical habitat species. Despite extensive surveys and overhang and aspect) and include a thin units. Areas proposed for designation as ongoing research, we currently are not layer of humid soil and/or humus critical habitat and their ownership are aware of any areas outside the between the moss and rock surface. described below. geographical area occupied by the As a result of the massive Fraser fir Unit 1: Swain County, North Carolina, spruce-fir moss spider that are essential die-offs and associated loss of moss and Sevier County, Tennessee for the conservation of the spider. To habitat for the spruce-fir moss spider, the extent feasible, we will continue, the remaining areas of suitable habitat Unit 1 encompasses all portions of the with the assistance of other Federal, for the spider exist only in scattered GSMNP bounded to the north and to the State, and private researchers, to patches, ranging from a single rock south of the North Carolina/Tennessee conduct surveys and research on the outcrop to scattered rock outcrop sites State line (State line) by the 1,646-m species and its habitat. If new (see ‘‘Background’’ section). Due to the (5,400-ft) contour, from the intersection information becomes available that patchiness and small size of the areas of the 1,646-m (5,400-ft) contour with indicates that other areas within the providing suitable habitat for the the State line, south of Mingus Lead, spruce-fir moss spider’s historic range spruce-fir moss spider, we have elected Tennessee, southwest and then west to that are essential to the conservation of to propose an inclusive area on each of the intersection of the 1,646-m (5,400-ft) the species, we will revise the proposed the mountain peaks still providing contour with the State line, east of The

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Narrows and west of Jenkins Knob, section 7, the Act does not provide other appreciably the likelihood of both the North Carolina, and Tennessee. forms of protection to land designated survival and recovery of a listed species’ as critical habitat. Because consultation (50 CFR 402.02). Federal agencies are Unit 2: Sevier County, Tennessee under section 7 of the Act does not prohibited from jeopardizing listed Unit 2 encompasses all portions of the apply to activities on private or other species through their actions, regardless GSMNP at and above the 1,646-m non-Federal land that do not involve a of whether critical habitat has been (5,400-ft) contour, bounded on the Federal action, critical habitat designated for the species. Where southwest side by the North Carolina/ designation would not afford any critical habitat is designated, section 7 Tennessee State line from the protection under the Act against such requires Federal agencies also to ensure intersection of the State line with the activities. Accordingly, the designation that activities they authorize, fund, or 1,646-m (5,400-ft) contour near Dry of critical habitat on Grandfather carry out do not result in the destruction Sluice Gap, southeast to the intersection Mountain will not have any regulatory or adverse modification of designated of the State line with the 1,646-m effect on private or State activities in critical habitat. Activities that destroy or (5,400-ft) contour at the head of Minnie these areas unless those activities adversely modify critical habitat are Ball Branch, North Carolina, northwest require a Federal permit, authorization, defined as those actions that of , North Carolina, and or funding. ‘‘appreciably diminish the value of Tennessee. Section 7(a)(4) of the Act and critical habitat for both the survival and regulations at 50 CFR 402.10 require recovery of the species’’ (50 CFR Unit 3: Avery and Mitchell Counties, Federal agencies to confer with us on 402.02). Common to the definitions of North Carolina, and Carter County, any action that is likely to result in the both ‘‘jeopardy’’ and ‘‘destruction or Tennessee destruction or adverse modification of adverse modification of critical habitat’’ Unit 3 encompasses all portions of the proposed critical habitat. ‘‘Destruction is the concept that the likelihood of both Pisgah National Forest in North Carolina or adverse modification’’ is defined as a survival and recovery of the species are and the Cherokee National Forest in direct or indirect alteration that appreciably reduced by the action. Tennessee, bounded to the north and to appreciably diminishes the value of Because of the small size of surviving the south of the North Carolina/ critical habitat for both the survival and populations of the spruce-fir moss Tennessee State line by the 1,646-m recovery of the listed species for which spider, the species’ restricted range, and (5,400-ft) contour, from the intersection critical habitat was designated. These the limited amount of suitable habitat of the 1,646-m (5,400-ft) contour with conferences, which consist of informal available to the species, actions that are the State line north of Elk Hollow discussions, are intended to assist likely to destroy or adversely modify Branch, Avery County, North Carolina, responsible agencies and the applicant, critical habitat are also likely to and southwest of Yellow Mountain, if applicable, in identifying and jeopardize the species. Accordingly, Carter County, Tennessee, west to the resolving potential conflicts. Conference even though Federal agencies will be 1,646-m (5,400-ft) contour at Eagle Cliff, reports resulting from these discussions required to evaluate the potential effects Mitchell County, North Carolina. provide conservation recommendations of their actions on any habitat that is Unit 4: Avery, Caldwell, and Watauga to assist the agency in eliminating designated as critical habitat for the Counties, North Carolina. conflicts that may be caused by the spruce-fir moss spider, this designation Unit 4 encompasses all areas of proposed action. The conservation would not be likely to change the privately owned Grandfather Mountain recommendations in a conference report outcome of section 7 consultations. at and above the 1,646-m (5,400-ft) are advisory. We may issue a formal Section 4(b)(8) of the Act requires us contour. conference report if requested by a to briefly evaluate, in any proposed or Effects of Critical Habitat Designation Federal agency. Formal conference final regulation that designates critical reports on proposed critical habitat are habitat, those activities that may Designating critical habitat does not, prepared according to 50 CFR 402.14 as adversely modify such habitat or may be in itself, lead to the recovery of a listed if critical habitat were designated. We affected by such designation. Activities species. The designation does not may adopt the formal conference report that may destroy or adversely modify establish a reserve, create a management as a biological opinion if the critical critical habitat are, as discussed above, plan, establish numerical population habitat is designated, if no significant those that alter the primary constituent goals, prescribe specific management new information or changes in the elements to the extent that the value of practices (inside or outside of critical action alter the content of the opinion critical habitat for both the survival and habitat), or directly affect areas not (see 50 CFR 402.10(d)). recovery of the spruce-fir moss spider is designated as critical habitat. Specific If this proposal is finalized, activities appreciably diminished. We note that management recommendations for areas on Federal land, activities on private or such activities may also jeopardize the designated as critical habitat are most State land carried out by a Federal continued existence of the species. Such appropriately addressed in recovery and agency, or activities receiving funding activities may include, but are not management plans and through section or requiring a permit from a Federal limited to, the carrying out or issuance 7 consultation and section 10 permits. agency that may affect designated of permits for construction, recreation, Critical habitat receives regulatory critical habitat of the spruce-fir moss and development; pesticide/herbicide protection only under section 7 of the spider will require consultation under applications for the control of noxious Act through the prohibition against section 7 of the Act. However, section insects or weeds; controlled burns; destruction or adverse modification of 7 of the Act also requires Federal timber activities; and other activities designated critical habitat by actions agencies to ensure that actions they that could result in the removal or carried out, funded, or authorized by a authorize, fund, or carry out do not damage of high-elevation fir forest Federal agency. Section 7 also requires jeopardize the continued existence of canopy that is sheltering moss mats or conferences on Federal actions that are listed species and to consult with us on damage to the moss mats themselves. likely to result in the adverse any action that may affect a listed Requests for copies of the regulations modification or destruction of proposed species. Activities that jeopardize listed on listed wildlife and inquiries about critical habitat. Aside from the species are defined as actions that prohibitions and permits, or questions protection that may be provided under ‘‘directly or indirectly, reduce regarding whether specific activities

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We Economic Analysis and their possible effects on proposed will invite these peer reviewers to Section 4(b)(2) of the Act requires us critical habitat; comment, during the public comment to designate critical habitat on the basis 5. Any foreseeable economic or other period, on the specific assumptions and of the best scientific and commercial impacts resulting from the proposed conclusions regarding the proposed information available and to consider designation of critical habitat, in designation of critical habitat. the economic and other relevant particular, any impacts on small entities We will consider all comments and impacts of designating a particular area or families; information received during the 60-day as critical habitat. We may exclude areas 6. Economic and other values comment period on this proposed rule as critical habitat upon a determination associated with designating critical during preparation of a final that the benefits of such exclusions habitat for the spruce-fir moss spider, rulemaking. Accordingly, the final outweigh the benefits of specifying such such as those derived from decision may differ from this proposal. areas as critical habitat. However, we nonconsumptive uses (e.g., hiking, Public Hearings cannot exclude areas from critical camping, bird watching, enhanced habitat when the exclusion will result in watershed protection, improved air The Act provides for one or more the extinction of the species. We will quality, ‘‘existence values,’’ and public hearings on this proposal, if conduct an analysis of the economic reductions in administrative costs); and requested. Requests must be filed within impacts of designating these areas 7. Potential adverse effects to the 45 days of the date of this proposal. identified above as critical habitat prior spruce-fir moss spider and/or its habitat Such requests must be made in writing to a final determination. When a draft of associated with designating critical and should be addressed to the State the economic analysis is completed, we habitat for the species; e.g., increased Supervisor, Asheville Field Office (see will announce its availability with a risk to species from collecting or the Addresses section). Written comments notice in the Federal Register, and we destruction of its habitat. submitted during the comment period Please submit comments as an ASCII will open a 30-day comment period at receive equal consideration with those file format and avoid the use of special that time. comments presented at a public hearing. characters and encryption. Please also Secretarial Order 3206: American include ‘‘Attn: [RIN number]’’ and your Clarity of the Rule Indian Tribal Rights, Federal-Tribal name and return address in your e-mail Executive Order 12866 requires each Trust Responsibilities and the message. If you do not receive a agency to write regulations/notices that Endangered Species Act confirmation from the system that we are easy to understand. We invite your have received your e-mail message, In accordance with the Presidential comments on how to make this contact us directly by calling our Memorandum of April 29, 1994, we are document easier to understand, Asheville Field Office (see ‘‘Addresses’’ required to assess the effects of critical including answers to questions such as section). the following: (1) Are the requirements habitat designations on tribal land and Our practice is to make all comments, tribal trust resources. We did not in the document clearly stated? (2) Does including names and home addresses of the document contain unnecessary propose any tribal land for designation respondents, available for public review as critical habitat, and we do not technical language or jargon that during regular business hours. interferes with the clarity? (3) Does the anticipate any effects on tribal trust Individual respondents may request that resources if this proposal is made final. format of the proposed rule (grouping we withhold their home address from and order of sections, use of headings, Public Comments Solicited the rulemaking record, which we will paragraphing, etc.) aid or reduce its honor to the extent allowable by law. In We intend that any final action clarity? (4) Is the description of the some circumstances, we would notice in the SUPPLEMENTARY resulting from this proposal will be as withhold from the rulemaking record a accurate and as effective as possible. INFORMATION section of the preamble respondent’s identity, as allowable by helpful in understanding the notice? (5) Therefore, we solicit comments or law. If you wish for us to withhold your suggestions from the public, other What else could we do to make the name and/or address, you must state notice easier to understand? concerned governmental agencies, this prominently at the beginning of Native American tribes, the scientific Send a copy of any comments that your comments. However, we will not concern how we could make this notice community, industry, or any other consider anonymous comments. We interested party concerning this easier to understand to: Office of will make all submissions from Regulatory Affairs, Department of the proposed rule. We particularly seek organizations or businesses, and from comments concerning: Interior, Room 7229, 1849 C Street, NW, individuals identifying themselves as Washington, DC 20240. You may e-mail 1. The reasons why any habitat representatives or officials of should or should not be determined to your comments to this address: organizations or businesses, available [email protected]. be critical habitat as provided by section for public inspection in their entirety. 4 of the Act, including whether the Required Determinations benefits of designation will outweigh Peer Review any benefits of exclusion; In accordance with our policy Regulatory Planning and Review 2. Specific information on the published on July 1, 1994 (59 FR In accordance with the criteria in numbers and distribution of the spruce- 34270), we will seek the expert opinions Executive Order 12866, this rule is a fir moss spider and what habitat is of at least three appropriate and significant regulatory action and has essential to the conservation of the independent specialists regarding this been reviewed by the Office of species and why; proposed rule. The purpose of such Management and Budget (OMB).

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(a) This rule will not have an annual agency (see Table 1 below). Section 7 Federal ‘‘sponsorship’’ of their actions economic effect of $100 million or more, requires Federal agencies to ensure that are not restricted by the designation of or adversely affect an economic sector, they do not jeopardize the continued critical habitat (however, they continue productivity, jobs, the environment, or existence of the species. Based upon our to be bound by the provisions of the Act other units of government. The spruce- experience with the species and its concerning ‘‘take’’ of the species). fir moss spider was listed as an needs, we believe that any Federal (b) This rule will not create endangered species in 1995. Since that action or authorized action that could inconsistencies with other agencies’ time, we have conducted, and will potentially cause an adverse continue to conduct, formal and modification of the proposed critical actions. Federal agencies have been informal section 7 consultations with habitat would currently be considered required to ensure that their actions do other Federal agencies to ensure that as ‘‘jeopardy’’ to the species under the not jeopardize the continued existence their actions would not jeopardize the Act. of the spruce-fir moss spider since the continued existence of the spruce-fir Accordingly, we do not expect the listing in 1995. As shown in Table 1 moss spider. designation of areas as critical habitat (below), no additional effects on agency Under the Act, critical habitat may within the geographical range occupied actions are anticipated to result from not be adversely modified by a Federal by the species to have any incremental critical habitat designation. Because of agency action; critical habitat does not impacts on what actions may or may not the potential for impacts on other impose any restrictions on non-Federal be conducted by Federal agencies or Federal agency actions, we will persons unless they are conducting non-Federal persons that receive continue to review this proposed action activities funded or otherwise Federal authorization or funding. Non- for any inconsistencies with other sponsored or permitted by a Federal Federal persons who do not have a Federal agency actions.

TABLE 1.ÐIMPACTS OF SPRUCE-FIR MOSS SPIDER LISTING AND CRITICAL HABITAT DESIGNATION

Additional activities potentially Categories of activities Activities potentially affected by species listing only 1 affected by critical habitat designation 2

Federal Activities Potentially ...... Activities such as carrying out, or issuing permits, authorization or None. Affected 3 ...... funding for, utility construction; construction of recreational facilities; development activities; pesticide/herbicide applications; logging ac- tivities; or other activities that could result in damage to the moss mats or removal or damage to the high-elevation fir forest canopy that is sheltering moss mats providing habitat for the species. Private and other non-Federal ...... Activities occurring on Federal lands or that require a Federal action None. Activities Potentially Affected 4 ...... (permit, authorization, or funding) and that involve such activities as damaging or destroying spruce-fir spider habitat, whether by mechanical or other means (scientific or other collecting, timber harvest, right-of-way access across Federal land, etc.). 1 This column represents the activities potentially affected by listing the spruce-fir moss spider as an endangered species (February 6, 1995; 60 FR 6968) under the Endangered Species Act. 2 This column represents the effects on activities resulting from critical habitat designation beyond the effects attributable to the listing of the species. 3 Activities initiated by a Federal agency. 4 Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.

(c) The proposed rule, if made final, will have a significant effect on a designation of critical habitat will not will not significantly impact substantial number of small entities. As have any additional effects on these entitlements, grants, user fees, loan discussed under Regulatory Planning activities in areas of critical habitat programs, or the rights and obligations and Review above, this rule is not within the geographical range occupied of their recipients. Federal agencies expected to result in any restrictions in by the species. currently are required to ensure that addition to those currently in existence Unfunded Mandates Reform Act (2 their activities do not jeopardize the for areas of proposed critical habitat. U.S.C. 1501 et seq.) continued existence of the species and Small Business Regulatory Enforcement we do not anticipate that the adverse In accordance with the Unfunded Fairness Act (5 U.S.C. 804(2)) modification prohibition (resulting from Mandates Reform Act (2 U.S.C. 1501 et critical habitat designation) will have In the economic analysis, we will seq.): any incremental effects in areas of determine whether designation of a. This rule will not ‘‘significantly or proposed critical habitat. critical habitat will cause (a) any effect uniquely’’ affect small governments. A (d) This rule will not raise novel legal on the economy of $100 million or Small Government Agency Plan is not or policy issues. The proposed rule more, (b) any increases in costs or prices required. Small governments will not be follows the requirements for for consumers; individual industries; affected unless they propose an action determining critical habitat contained in Federal, State, or local government requiring Federal funds, permits, or the Act. agencies; or geographic regions, or (c) other authorization. Any such activity any significant adverse effects on will require that the involved Federal Regulatory Flexibility Act (5 U.S.C. 601 agency ensure that the action will not et seq.) competition, employment, investment, productivity, innovation, or the ability adversely modify or destroy designated In the draft economic analysis (under of U.S.-based enterprises to compete critical habitat. section 4 of the Act), we will determine with foreign-based enterprises. As b. This rule will not produce a whether designation of critical habitat discussed above, we anticipate that the Federal mandate on State, local, or tribal

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The need to prepare an Environmental or local governments. designation of critical habitat for the Assessment or an Environmental Impact spruce-fir moss spider imposes few, if Takings Statement as defined by the National any, additional restrictions to those Environmental Policy Act of 1969 in In accordance with Executive Order currently in place and therefore has connection with regulations adopted 12630, this rule does not have little incremental impact on State and pursuant to section 4(a) of the Act. We significant takings implications, and a local governments and their activities. published a notice outlining our reasons takings implication assessment is not The designation may have some benefit for this determination in the Federal required. This proposed rule, if made to these governments in that the areas Register on October 25, 1983 (48 FR final, will not ‘‘take’’ private property. essential to the conservation of the 49244). The designation of critical habitat species are more clearly defined and, to affects only Federal agency actions. the extent currently feasible, the References Cited Federal actions on private land could be primary constituent elements of the A complete list of all references cited affected by critical habitat designation; habitat necessary to the survival of the in this proposed rule is available upon however, we expect no regulatory effect species are specifically identified. While request from the Asheville Field Office from this designation since all proposed making this definition and (see ADDRESSES section). areas are considered to be within the identification does not alter where and geographical range occupied by the what federally sponsored activities may Author species and would be reviewed under occur, doing so may assist these local The primary author of this document both the jeopardy and adverse governments in long-range planning is John Fridell (see ADDRESSES section). modification standards under section 7 (rather than waiting for case-by-case of the Act. section 7 consultations to occur). List of Subjects in 50 CFR Part 17 The rule will not increase or decrease the current restrictions on private Civil Justice Reform Endangered and threatened species, property concerning taking of the In accordance with Executive Order Exports, Imports, Reporting and spruce-fir moss spider as defined in 12988, the Department of the Interior’s recordkeeping requirements, section 9 of the Act and its Office of the Solicitor has determined Transportation. implementing regulations (50 FR 17.31). that this rule does not unduly burden Proposed Regulation Promulgation Additionally, critical habitat the judicial system and meets the designation does not preclude the requirements of sections 3(a) and 3(b)(2) For the reasons given in the preamble, development of habitat conservation of the Order. The Office of the Solicitor we propose to amend 50 CFR part 17 as plans and the issuance of incidental will review the final determination for set forth below: take permits. Any landowners in areas this proposal. We will make every effort PART 17Ð[AMENDED] that are included in the designated to ensure that the final determination critical habitat will continue to have contains no drafting errors, provides 1. The authority citation for part 17 opportunity to utilize their property in clear standards, simplifies procedures, continues to read as follows: ways consistent with the survival of the reduces burden, and is clearly written spruce-fir moss spider. such that litigation risk is minimized. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Federalism Paperwork Reduction Act of 1995 (44 625, 100 Stat. 3500; unless otherwise noted. U.S.C. 3501 et seq.) In accordance with Executive Order 2. In § 17.11(h) revise the entry for the 13132, the rule does not have significant This rule does not contain any new ‘‘Spider, spruce-fir moss’’ under federalism effects. A Federalism collections of information that require ‘‘ARACHNIDS’’ to read as follows: Assessment is not required. In keeping approval by the Office of Management with Department of the Interior policy, and Budget (OMB) under 44 U.S.C. 3501 § 17.11 Endangered and threatened we requested information from, and et seq. This rule will not impose new wildlife. coordinated the development of this record-keeping or reporting * * * * * critical habitat proposal with, requirements on State or local (h) * * *

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

******* ARACHNIDS

******* Spider, spruce-fir Microhexura U.S.A. (NC, TN) ..... NA ...... E 576 17.95 (g) NA moss. montivaga.

*******

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3. Amend § 17.95 by adding (g) Arachnids. ownership are described below and paragraph (g) to read as follows: Spruce-fir moss spider (Microhexura depicted in the following maps. montivaga) BILLING CODE 4310±55±P § 17.95 Critical habitat-fish and wildlife. 1. Critical habitat units proposed for * * * * * designation as critical habitat and their

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Unit 1: Swain County, North Carolina, portions of the GSMNP bounded to the Carolina/Tennessee State line (State and Sevier County, Tennessee—all north and to the south of the North line) by the 1,646-m (5,400-ft) contour,

VerDate 112000 16:06 Oct 05, 2000 Jkt 194001 PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 E:\FR\FM\06OCP1.SGM pfrm02 PsN: 06OCP1 59810 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules from the intersection of the 1,646-m Narrows and west of Jenkins Knob, 1,646-m (5,400-ft) contour near Dry (5,400-ft) contour with the State line, North Carolina, and Tennessee. Sluice Gap, southeast to the intersection south of Mingus Lead, Tennessee, Unit 2: Sevier County, Tennessee—all of the State line with the 1,646-m southwest and then west to the portions of the GSMNP at and above the (5,400-ft) contour at the head of Minnie intersection of the 1,646-m (5,400-ft) 1,646-m (5,400-ft) contour, bounded on Ball Branch, North Carolina, northwest contour with the State line, east of The the southwest side by the North of Newfound Gap, North Carolina, and Carolina/Tennessee State line from the Tennessee. intersection of the State line with the

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Unit 3: Avery and Mitchell Counties, Tennessee—all portions of the Pisgah the Cherokee National Forest in North Carolina, and Carter County, National Forest in North Carolina and Tennessee, bounded to the north and to

VerDate 112000 16:06 Oct 05, 2000 Jkt 194001 PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 E:\FR\FM\06OCP1.SGM pfrm02 PsN: 06OCP1 59812 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules the south of the North Carolina/ the State line north of Elk Hollow 1,646-m (5,400-ft) contour at Eagle Cliff, Tennessee State line by the 1,646-m Branch, Avery County, North Carolina, Mitchell County, North Carolina. (5,400-ft) contour, from the intersection and southwest of Yellow Mountain, of the 1,646-m (5,400-ft) contour with Carter County, Tennessee, west to the

VerDate 112000 16:06 Oct 05, 2000 Jkt 194001 PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 E:\FR\FM\06OCP1.SGM pfrm02 PsN: 06OCP1 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules 59813

Unit 4: Avery, Caldwell, and Watauga Grandfather Mountain at and above the Counties, North Carolina—all areas of 1,646-m (5,400-ft) contour.

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2. Within these areas, the primary venture fishing in the groundfish make the FMP consistent with revisions constituent elements include: regulations, and is intended to update to the Magnuson-Stevens Act. Among i) Fraser fir or fir-dominated spruce- the FMP and its implementing other things, Amendment 11 set control fir forests at and above 1,646-m (5,400- regulations to reflect the current status rules to define rates of ‘‘overfishing’’ ft) in elevation; and of the fishery. and set defined levels at which managed ii) Moderately thick and humid, but DATES: Comments must be submitted in stocks are considered ‘‘overfished.’’ not wet, moss (species in the genus writing by November 20, 2000. Amendment 11 was approved and Dicranodontium, and possibly ADDRESSES: Send comments to Donna incorporated into the FMP in March Polytrichum) and/or liverwort mats on Darm,, Acting Administrator, Northwest 1999. rock surfaces that are adequately Region, (Regional Administrator) NMFS, While implementing Amendment 11 sheltered from the sun and rain (by 7600 Sand Point Way NE., Seattle, WA provisions for rebuilding overfished overhang and aspect) and include a thin 98115; or Rebecca Lent, Administrator, stocks, the Council determined that it layer of humid soil and/or humus Southwest Region, NMFS, 501 West between the moss and rock surface. needed to set procedures within the Ocean Blvd., Suite 4200, Long Beach, groundfish FMP for developing 3. Existing human structures and CA 90802-4213. Copies of Amendment overfished species rebuilding plans and other features not containing all of the 12 to the Pacific Coast Groundfish FMP, for providing NMFS with the primary constituent elements are not and the Environmental Assessment/ opportunity to review and approve/ considered critical habitat. Regulatory Impact Review (EA/RIR) are disapprove those plans. Amendment 12 available from Donald McIsaac, Dated: September 28, 2000. provides a process by which the Council Kenneth L. Smith, Executive Director, Pacific Fishery Management Council, 2130 SW Fifth will develop overfished species Acting Assistant Secretary for Fish and rebuilding plans during its annual Wildlife and Parks. Avenue, Suite 224, Portland, OR 97201. Send comments regarding any specifications and management [FR Doc. 00–25671 Filed 10–5–00; 8:45 am] ambiguity or unnecessary complexity measures process. BILLING CODE 4310±55±C arising from the language used in this During the Council’s two-meeting rule to William Stelle, Jr. or Rebecca process for setting annual specifications Lent. and management measures (usually DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: September and November,) the Council would make overfished species National Oceanic and Atmospheric William Robinson at: phone, 206-526- Administration 6140; fax, 206-526-6736, and email, rebuilding plans available for public [email protected] Svein Fougner review, and would incorporate 50 CFR Part 660 at: phone, 562-980-4000; fax, 562-980- measures to implement those plans 4047; and email, within the annual specifications and [Docket No. 000927275-0275-01; I.D. [email protected] management measures. Rebuilding plan 082800F] Electronic Access: This Federal contents are defined in the FMP and RIN 0648-AO31 Registerdocument is also accessible via rely upon the Council’s annual stock the internet at the website of the Office assessment and review process. Once Fisheries off West Coast States and in of the Federal Register: <

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