11086 Federal Register / Vol. 76, No. 40 / Tuesday, March 1, 2011 / Rules and Regulations 

numerical order for 10–2.385 under 

Chapter 2 and 10–5.385 under Chapter 

5 to read as follows: 

§ 52.1320 Identification of Plan. 

* * * * * 

(c) * * * 

EPA-APPROVED MISSOURI REGULATIONS

Missouri citation Title State effective 

date EPA approval date Explanation 

Missouri Department of Natural Resources Chapter 2—Air Quality Standards and Air Pollution Control Regulations for the Kansas City 

Metropolitan Area 

*******

10–2.385 ................................. Control of Heavy Duty Diesel 

Vehicle Idling Emissions.

02/28/09 03/01/11 [insert FR page number where the document begins].Subsection (3)(A) is not 

SIP approved. 

* * * * * * * 

Chapter 5—Air Quality Standards and Air Pollution Control Regulations for the St. Louis Metropolitan Area 

*******

10–5.385 ................................. Control of Heavy Duty Diesel 

Vehicle Idling Emissions.

02/28/09 03/01/11 [insert FR page number where the document begins].Subsection (3)(A) is not 

SIP approved. 

* * * * * * * 

* * * * * 

[FR Doc. 2011–4368 Filed 2–28–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2010–0003; MO 

92210–0–0009–B4] 

RIN 1018–AW55 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Carex lutea (Golden Sedge) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), designate 

critical habitat for the Carex lutea 

(golden sedge) under the Endangered 

Species Act of 1973, as amended. In 

total, approximately 202 acres (82 

hectares) in 8 units located in Onslow 

and Pender Counties, North Carolina 

fall within the boundaries of the critical 

habitat designation. 

DATES: This final rule becomes effective 

on March 31, 2011. 

ADDRESSES: This final rule and the 

associated final economic analysis are 

available on the Internet at http:// 

www.regulations.gov. Comments and 

materials received, as well as supporting 

documentation used in preparing this 

final rule, are available for public 

inspection, by appointment, during 

normal business hours, at the U.S. Fish 

and Wildlife Service, Raleigh Fish and 

Wildlife Office, 551–F Pylon Drive, 

Raleigh, NC 27636; telephone 919–856– 

4520; facsimile 919–856–4556. 

FOR FURTHER INFORMATION CONTACT: Pete 

Benjamin, Field Supervisor, U.S. Fish 

and Wildlife Service, Raleigh Fish and 

Wildlife Office (see ADDRESSES). If you 

use a telecommunications device for the 

deaf (TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss in this final 

rule only those topics directly relevant 

to the development and designation of 

critical habitat for Carex lutea under the 

Act (16 U.S.C. 1531 et seq.). For more 

information on the taxonomy, biology, 

and ecology of Carex lutea, refer to the 

final listing rule published in the 

Federal Register on January 23, 2002 

(67 FR 3120). Information on the 

associated draft economic analysis 

(DEA) for the proposed rule to designate 

critical habitat was published in the 

Federal Register on August 3, 2010 (75 

FR 45592). 

Species Description, Life History, 

Distribution, Ecology and Habitat 

Carex lutea is a perennial member of 

the sedge family (Cyperaceae). Fertile 

culms (stems) may reach 39 in (1 m) or 

more in height. The yellowish green 

leaves are grass-like, with those of the 

culm mostly basal and up to 11 in (28 

cm) in length, while those of the 

vegetative shoots reach a length of 25.6 

in (65 cm). 

The species is endemic to Onslow and 

Pender Counties in the Black River 

section of the Coastal Plain Province of 

North Carolina. The North Carolina 

Natural Heritage Program (NCNHP) 

recognizes eight populations made up of 

17 distinct locations or element 

occurrences. All of the locations occur 

within a 16- by 5-mile (26- by 8- 

kilometer) area, extending southwest 

from the community of Maple Hill. 

Carex lutea generally occurs on fine 

sandy loam, loamy fine sands, and fine 

sands with a pH of 5.5 to 7.2, and with 

a mean of 6.7. These soils are moist to 

saturated to periodically inundated. 

Carex lutea occurs in the Pine Savanna 

(Very Wet Clay Variant) natural 

community type (Schafale 1994, p. 136). 

Community structure is characterized 

by an open to sparse canopy dominated 

by pond pine (Pinus serotina), and 

usually with some longleaf pine (P. 

palustris) and pond cypress (Taxodium 

ascendens). 

Carex lutea is threatened by fire 

suppression; habitat alteration such as 

land conversion for residential, 

commercial, or industrial development; 

mining; drainage for silviculture and 

agriculture; highway expansion; and 

herbicide use along utility and highway 

rights-of-way. 

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Federal Register / Vol. 76, No. 40 / Tuesday, March 1, 2011 / Rules and Regulations 11087 

Previous Federal Actions 

Carex lutea was listed as endangered 

under the Act on January 23, 2002 (67 

FR 3120). Designation of critical habitat 

had been found to be not prudent in the 

proposed listing rule (64 FR 44470, 

August 16, 1999); however, following a 

reevaluation of information available for 

the proposal and new information that 

came in through the public comment 

period on the proposal, critical habitat 

designation was determined to be 

prudent in the final listing rule (67 FR 

3120). However, the development of a 

designation was deferred due to 

budgetary and workload constraints. 

On December 19, 2007, the Center for 

Biological Diversity filed a complaint 

for declaratory and injunctive relief 

challenging the Service’s continuing 

failure to timely designate critical 

habitat for this species as well as three 

other plant species (Center for Biological 

Diversity v. Kempthorne, C–04–3240 JL 

(N. D. Cal.)). In a settlement agreement 

dated April 11, 2008, the Service agreed 

to submit for publication in the Federal 

Register a proposed designation of 

critical habitat, if prudent and 

determinable, on or before February 28, 

2010, and a final determination by 

February 28, 2011. 

We affirmed that designation of 

critical habitat for Carex lutea is 

prudent and determinable, and we 

published a proposal to designate 

critical habitat for this species in the 

Federal Register on March 10, 2010 (75 

FR 11080). We accepted public 

comments on this proposal for 60 days, 

ending May 10, 2010. On August 3, 

2010 (75 FR 45592), we announced the 

reopening of the public comment period 

for an additional 30 days (ending 

September 2, 2010); the availability of a 

DEA; our proposal to enlarge two 

previously proposed subunits of critical 

habitat because we discovered that 

Carex lutea occupies an area at these 

two subunits that is greater than what 

we believed when we were preparing 

the March 10, 2010, proposed rule; and 

an amended required determinations 

section of the proposal (75 FR 45592). 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of critical habitat for Carex lutea during 

two comment periods. The first 

comment period, following publication 

of the proposed rule, opened March 10, 

2010 (75 FR 11080), and closed May 10, 

2010. The second comment period, 

associated with the availability of the 

DEA and our revised proposal, opened 

August 3, 2010 (75 FR 45592), and 

closed September 2, 2010. We contacted 

appropriate Federal, State, County, and 

local agencies; scientific organizations; 

and other interested parties, and invited 

them to comment on the proposed rule 

and the associated DEA. 

During the first comment period 

(March 10 through May 10, 2010), we 

received two comment letters directly 

addressing the proposed critical habitat 

designation. During the second 

comment period (August 3 through 

September 2, 2010), we received one 

comment letter addressing the proposed 

critical habitat designation and the DEA. 

We did not receive any requests for a 

public hearing, so no public hearing was 

held. Comments we received, including 

comments from peer reviewers (see 

below), are addressed in the following 

summary and incorporated into the final 

rule as appropriate. 

Peer Review 

In accordance with our peer review 

policy published in the Federal Register 

on July 1, 1994 (59 FR 34270), we 

solicited expert opinions from three 

knowledgeable individuals with 

scientific expertise including familiarity 

with the species, the geographic region 

in which the species occur, and 

conservation biology principles 

pertinent to the species. We received 

responses from all three peer reviewers. 

We reviewed all comments we 

received from peer reviewers for 

substantive issues and new information 

regarding critical habitat for Carex lutea. 

With a few exceptions, the peer 

reviewers generally concurred with our 

methods and conclusions, indicating the 

Service had used the most current 

scientific information available; had 

accurately described the species, their 

habitat requirements, the primary 

constituent elements (PCEs) for the 

species, the reasons for their decline, 

and threats to their habitat; and had 

done a thorough job of delineating 

critical habitat using the best available 

scientific information. 

Peer Reviewer Comments 

Comment 1: One reviewer pointed out 

that, for those sites that occur on land 

currently owned by the North Carolina 

Division of Parks and Recreation 

(NCDPR) or lands expected to be 

transferred to it in the near future 

(Sandy Run Savannas and Haws Run), 

the savanna restoration plans are 

unclear because of funding and on-site 

personnel uncertainties; however 

prescribed burning has been initiated on 

the parcels. 

Our Response: The Service 

appreciates the work that the NCDPR 

has done to protect and enhance Carex 

lutea and its habitat, such as the 

prescribed burns. NCDPR will continue 

to manage the habitat as resources 

allow. Additionally, the Service will 

continue to work with NCDPR to help 

protect, manage, and enhance Carex 

lutea and its habitat that occurs on the 

lands as funding becomes available. 

Comment 2: One reviewer stated that 

sea level rise, as a consequence of 

climate change, could have significant 

long-term impacts on these populations 

because the elevation range is only 6.0 

ft (1.83 m) to 14.0 ft (4.27 m) for all 

Sandy Run and Haws Run properties. 

Additionally, rising water tables may 

result in shifts of savanna species to 

higher landscape positions within the 

natural area. 

Our Response: The Service is 

concerned about global climate change 

and how sea level rise will affect 

federally listed species. We will 

continue to monitor rising water tables 

and consider actions to protect Carex 

lutea. 

Comment 3: Another reviewer 

summarized that the greatest threats are 

inadequate fire and the consequences 

thereof to Carex lutea habitat at 

protected sites. The reviewer further 

stated that climate change may 

exacerbate some of the problems 

associated with this threat. 

Our Response: The Service will 

continue to monitor threats to Carex 

lutea and its habitat and will work with 

land owners, as appropriate, to 

encourage prescribed fires and other 

beneficial management activities. We 

are not aware of any populations that 

have been affected by or may be affected 

by climate change in the future. We will 

also monitor and work to address 

potential effects if they occur. 

Comment 4: One reviewer commented 

that fire suppression allows critical 

habitat to be invaded by nonindigenous 

plants and animals that are not fireadapted. 

Our Response: The Service agrees 

with the reviewer’s statement, and we 

included a sentence stating this in the 

Special Management Considerations or 

Protections section of this rule. 

Comment 5: One reviewer pointed out 

that Baymeade and possibly Mandarin 

soils are too dry for Carex lutea and 

indicated that if Carex lutea is known 

from an area mapped as Baymeade that 

it likely occurs on a wetter soil type that 

is too small to map. 

Our Response: The Service reviewed 

the characteristics for Baymeade and 

Mandarin soils. Baymeade soil is 

considered a well-drained soil with 

rapid permeability, and Mandarin soil is 

considered somewhat poorly drained. 

We agree with the commenter and have 

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11088 Federal Register / Vol. 76, No. 40 / Tuesday, March 1, 2011 / Rules and Regulations 

made changes in the Food, Water, Air, 

Light, Minerals, or Other Nutritional or 

Physiological Requirements (Soil) 

section. We removed Baymeade from 

the list of soil types where Carex lutea 

may occur. Because Mandarin soils are 

somewhat poorly drained, we made no 

changes to this soil type in this final 

rule. 

Comment 6: One reviewer clarified 

that perigynia frequently detach 

individually or a few together from the 

spikes and rarely, if ever, reach the 

ground while still attached to the spike 

and culm. 

Our Response: The Service agrees 

with the reviewer’s statement, and we 

made the appropriate changes in the 

Sites for Breeding, Reproduction, or 

Rearing (or Development) of Offspring 

section. 

Comment 7: One reviewer commented 

that while drainage ditches may have 

suitable wetland soils and are able to 

support Carex lutea, their hydrologic 

regimes are not natural and it is likely 

that seeds produced from ditch 

populations are transported off site to 

unsuitable habitat during precipitation 

events. 

Our Response: The Service agrees 

with this statement, and we included a 

sentence clarifying this in the Food, 

Water, Air, Light, Minerals, or Other 

Nutritional or Physiological 

Requirements (Water) section. 

Comment 8: One reviewer asked if it 

was possible for the final rule to refer to 

the U.S. Department of Agriculture’s 

(USDA) National Agriculture Imagery 

Program aerial photos that would show 

the critical habitat as it existed on the 

date the photos were taken in order to 

resolve any conflicts regarding the 

beginning date of any development 

within the critical habitat area’s 

boundaries. 

Our Response: Our regulations require 

us to provide textual descriptions of the 

boundaries of critical habitat for a 

species. These descriptions are most 

commonly provided using latitudelongitude or Universal Transverse 

Mercator (UTM) coordinate pairs. The 

USDA National Agriculture Imagery 

Program maps do not satisfy this 

requirement. However, the USDA 

National Agriculture Imagery Program 

aerial photos will be made available for 

viewing at the office listed in the 

ADDRESSES section of this rule. 

Comment 9: One reviewer noted that 

Unit 6, subunit A, The Neck Savanna 

has the additional significance of being 

the type locality for Carex lutea. 

Our Response: The Service agrees 

with this statement, and we have added 

language in the unit description to 

acknowledge this. 

Comment 10: One reviewer pointed 

out that the locations of subunits within 

Unit 7 were not adequately described. 

Our Response: We agree and have 

amended the location description in the 

Final Critical Habitat Designation 

section of this final rule. 

Comment 11: One reviewer 

mentioned that the map for Unit 7 is 

unclear as subunits 7A and 7B appear 

as only one polygon. 

Our Response: The Service agrees 

with this comment; however, it is 

difficult to show subunits 7A and 7B as 

separate polygons at the resolution 

required for Federal Register 

publication. Subunits 7A and 7B are 

only separated by approximately 25 feet 

(7.6 meters), the width of a gravel road 

through the site. The boundaries are 

properly identified in the Final Critical 

Habitat Designation and Regulation 

Promulgation sections of this rule. More 

detailed maps that show the separation 

of subunits 7A and 7B are available 

from the Raleigh Fish and Wildlife 

Office. See the ADDRESSES section of this 

final rule for contact information. 

Public Comments 

Comment 12: One commenter asked 

that his family property not be 

considered a part of the critical habitat 

area because the family’s intent is to 

continue farming and provide the 

family’s dependent children the 

opportunity to develop the property as 

desired. 

Our Response: We carefully inspected 

updated aerial imagery of the proposed 

critical habitat area. We also conducted 

a site visit to the commenter’s property 

to determine if the area in question 

provides the essential physical and 

biological features for Carex lutea. We 

determined that a small area along the 

edge of the commenter’s property does 

contain the essential physical and 

biological features for Carex lutea and a 

small population occurs in the critical 

habitat area. We are not able to exclude 

areas that currently provide the 

essential physical and biological 

features for the species from critical 

habitat designation on the basis of 

anticipated future development, nor do 

such development plans form the basis 

for an exclusion from critical habitat 

under the provisions of the Act. The 

total amount of designated critical 

habitat in this subunit is 0.1 acre (ac) 

(0.04 hectare (ha)). The designation of 

critical habitat, in and of itself, has no 

legal effect on property rights or 

constitutes a physical or regulatory 

‘‘taking’’ of real estate property. See the 

‘‘Takings—Executive Order 12630’’ 

discussion below. 

Comment 13: One commenter 

mentioned that Muhlenbergia expansa 

(cutover muhly) is the most abundant 

grass in relatively undisturbed, specific 

locations of Carex lutea. 

Our Response: The Service agrees 

with this statement, and we 

incorporated this species in the habitat 

description in the Habitats Protected 

from Disturbance or Representative of 

the Historic, Geographical, and 

Ecological Distributions of the Species 

section. 

Comment 14: One commenter noted 

that Shaken Creek Savanna is owned 

and managed by The Nature 

Conservancy (TNC) and that hunting 

rights are separately owned by private 

individuals and are tied to a hunt club. 

Our Response: We made the 

appropriate clarification in the Final 

Critical Habitat Designation section. 

Comment 15: One commenter noted 

that he is aware of populations of Carex 

lutea at subunits 7A and 7B, but that he 

is not aware of any Carex lutea 

population at subunit 7C. 

Our Response: We contacted the 

species expert at North Carolina Natural 

Heritage Program and confirmed that 

Carex lutea and the necessary physical 

and biological features for this species 

do occur in subunit 7C. Therefore, we 

did not make any changes to this part 

of the critical habitat designation. 

Comment 16: One commenter noted 

that subunit 8C appears to have many 

acres (hectares) of suitable habitat for 

Carex lutea and suggested that this 

subunit should be greatly expanded. 

Our Response: We conducted a site 

visit to the property to determine if the 

area in question provides the essential 

physical and biological features for 

Carex lutea. Our findings concur with 

the commenter’s suggestions. The actual 

extent of Carex lutea at this site was 

greater than we previously believed. 

Based on this new information, we 

expanded the critical habitat area to 

incorporate a larger area that contains 

the essential physical and biological 

features for Carex lutea. On August 3, 

2010, we published in the Federal 

Register (75 FR 45592) our proposal to 

increase the area of subunit 8C, as well 

as the area of subunit 5D. The total 

amount of proposed critical habitat in 

subunit 8C increased by 8.2 ac (3.3 ha), 

from 1.6 ac (0.6 ha) in our March 10, 

2010, proposed rule (75 FR 11080) to 9.8 

ac (4.0 ha) in our August 3, 2010, 

revised proposed rule (75 FR 45592). 

Comment 17: One commenter 

expressed concern over the potential 

negative impacts of listing the Maple 

Hill School Road Savanna (Unit 3) as 

critical habitat. He mentioned that the 

site consists of several small parcels 

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Federal Register / Vol. 76, No. 40 / Tuesday, March 1, 2011 / Rules and Regulations 11089 

owned by approximately 12 private 

individuals. He is concerned that the 

critical habitat designation may result in 

reactive actions by these landowners 

that may destroy good habitat and the 

small population that was known to 

occur there at the time of listing. 

Our Response: The Service respects 

the commenter’s opinions on this matter 

because of his extensive involvement 

with the protection of many of the 

conservation lands associated with 

Carex lutea. However, we are not able 

to exclude areas that currently provide 

the essential physical and biological 

features for the species from critical 

habitat designation on this basis. 

Further, when we published the 

proposed rule in March 2010, we 

contacted all of the property owners that 

might be affected by the designation. In 

our correspondence we included a letter 

that explained the proposed rule and 

provided a copy of the Federal Register 

notice along with information about 

how to provide public comments. We 

did not receive any public comments 

from any property owner in the vicinity 

of Unit 3. 

Summary of Changes From the 

Proposed Rule 

We thoroughly evaluated all 

comments received on the proposed 

designation of critical habitat. As a 

result of the comments we received on 

the proposed rules, as well as additional 

field observations during the 2010 field 

season, we have made the following 

changes to our proposed designation. 

• We adjusted the boundary of Unit 5, 

subunit D (Sandy Run Savannas), in 

Onslow County. We expanded the 

critical habitat area from 0.3 ac (0.1 ha) 

to 4.9 ac (2.0 ha), an increase of 4.6 ac 

(1.9 ha). Unit 5 is in conservation 

ownership by the NCDPR and managed 

as the Sandy Run Savannas State 

Natural Area. The proposed expansion 

of Unit 5, subunit D (Sandy Run 

Savannas), was described in our August 

3, 2010, revised proposed rule (75 FR 

45592). 

• We adjusted the boundary of Unit 8, 

subunit C (McLean Savanna) in Pender 

County. We expanded the critical 

habitat area from 1.6 ac (0.6 ha) to 9.8 

ac (4.0 ha), for an increase of 8.2 ac (3.3 

ha). Subunit 8C is owned by TNC and 

a private company; however, TNC 

anticipates acquiring the privately 

owned section in the next 12 months 

and managing the entire site as a nature 

preserve. The proposed expansion of 

Unit 8, subunit C (McLean Savanna), 

was described in our August 3, 2010, 

revised proposed rule (75 FR 45592). 

All of the additional areas included 

within the critical habitat boundaries 

contain all of the PCEs that were 

identified in the March 10, 2010, 

proposed rule (75 FR 11080) to 

designate critical habitat for Carex lutea. 

Because the areas where we increased 

the size of the critical habitat units are 

in current or impending conservation 

ownership, we determined that 

including these areas within the critical 

habitat designation will not impact any 

development, silviculture, or other 

activities of economic importance; 

therefore, this decision will not alter the 

economic analysis of the designation. 

With the inclusion of these additional 

areas, the Service is designating 8 units 

(21 subunits) totaling approximately 

201.8 ac (81.7 ha) in Onslow and Pender 

Counties, North Carolina, as critical 

habitat for Carex lutea. 

We are finalizing the following 

critical habitat designation in 

accordance with section 4 of the Act. 

TABLE 1—CRITICAL HABITAT UNIT CHANGES IN ACRES (HECTARES) FOR Carex lutea 

[Area estimates reflect all land within critical habitat unit boundaries] 

Unit Subunit Proposed rule 

ac (ha) 

Final rule 

ac (ha) 

Change 

ac (ha) 

1 ......................................................................................... A 1.2 (0.5) 1.2 (0.5) 

1 ......................................................................................... B 2.0 (0.8) 2.0 (0.8) 

1 ......................................................................................... C 0.6 (0.2) 0.6 (0.2) 

2 ......................................................................................... N/A 27.1 (11.0) 27.1 (11.0) 

3 ......................................................................................... N/A 27.7 (11.2) 27.7 (11.2) 

4 ......................................................................................... A 2.3 (0.9) 2.3 (0.9) 

4 ......................................................................................... B 1.0 (0.4) 1.0 (0.4) 

5 ......................................................................................... A 2.6 (1.1) 2.6 (1.1) 

5 ......................................................................................... B 4.3 (1.7) 4.3 (1.7) 

5 ......................................................................................... C 0.3 (0.1) 0.3 (0.1) 

5 ......................................................................................... D 0.3 (0.1) 4.9 (2.0) + 4.6 (1.9) 

5 ......................................................................................... E 13.1 (5.3) 13.1 (5.3) 

6 ......................................................................................... A 3.6 (1.5) 3.6 (1.5) 

6 ......................................................................................... B 0.7 (0.3) 0.7 (0.3) 

6 ......................................................................................... C 0.1 (0.04) 0.1 (0.04) 

7 ......................................................................................... A 6.9 (2.8) 6.9 (2.8) 

7 ......................................................................................... B 24.7 (10.0) 24.7 (10.0) 

7 ......................................................................................... C 26.1 (10.6) 26.1 (10.6) 

8 ......................................................................................... A 42.3 (17.1) 42.3 (17.1) 

8 ......................................................................................... B 0.5 (0.2) 0.5 (0.2) 

8 ......................................................................................... C 1.6 (0.6) 9.8 (4.0) + 8.2 (3.3) 

Total * .......................................................................... .............................. 189.0 (76.5) 201.8 (81.7) + 12.8 (5.2) 

* Note: Area sizes may not sum due to rounding. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by a species, 

at the time it is listed in accordance 

with the Act, on which are found those 

physical or biological features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by a species 

at the time it is listed, upon a 

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11090 Federal Register / Vol. 76, No. 40 / Tuesday, March 1, 2011 / Rules and Regulations 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

under the Act are no longer necessary. 

Such methods and procedures include, 

but are not limited to, all activities 

associated with scientific resources 

management such as research, census, 

law enforcement, habitat acquisition 

and maintenance, propagation, live 

trapping, and transplantation, and, in 

the extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

insure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation 

does not allow the government or public 

to access private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by nonFederal landowners. Where a landowner 

seeks or requests Federal agency 

funding or authorization for an action 

that may affect a listed species or 

critical habitat, the consultation 

requirements of section 7(a)(2) of the 

Act would apply, but even in the event 

of a destruction or adverse modification 

finding, the obligation of the Federal 

action agency and the landowner is not 

to restore or recover the species, but to 

implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of critical habitat. 

To be included in a critical habitat 

designation, the habitat within the 

geographical area occupied by the 

species at the time it was listed must 

contain the physical or biological 

features essential to the conservation of 

the species, and be included only if 

those features may require special 

management considerations or 

protection. Critical habitat designations 

identify, to the extent known using the 

best scientific and commercial data 

available, those physical and biological 

features that are essential to the 

conservation of the species (such as 

space, food, cover, and protected 

habitat), focusing on the principal 

biological or physical constituent 

elements (primary constituent elements) 

within an area that are essential to the 

conservation of the species (such as 

roost sites, nesting grounds, seasonal 

wetlands, water quality, tide, soil type). 

Primary constituent elements are the 

elements of physical and biological 

features that, when laid out in the 

appropriate quantity and spatial 

arrangement to provide for a species’ 

life-history processes, are essential to 

the conservation of the species. 

Under the Act, we can designate 

critical habitat in areas outside the 

geographical area occupied by the 

species at the time it is listed only upon 

a determination that such areas are 

essential for the conservation of the 

species. We designate critical habitat in 

areas outside the geographical area 

occupied by a species only when a 

designation limited to its range would 

be inadequate to ensure the 

conservation of the species. When the 

best available scientific data do not 

demonstrate that the conservation needs 

of the species require such additional 

areas, we will not designate critical 

habitat in areas outside the geographical 

area occupied by the species. An area 

currently occupied by the species but 

that was not occupied at the time of 

listing may, however, be essential to the 

conservation of the species and may be 

included in the critical habitat 

designation. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. 

Habitat is dynamic, and species may 

move from one area to another over 

time. Climate change will be a particular 

challenge for biodiversity because the 

interaction of additional stressors 

associated with climate change and 

current stressors may push species 

beyond their ability to survive (Lovejoy 

2005, pp. 325–326). The synergistic 

implications of climate change and 

habitat fragmentation are the most 

threatening facet of climate change for 

biodiversity (Hannah et al. 2005, p. 4). 

Current climate change predictions for 

terrestrial areas in the Northern 

Hemisphere indicate warmer air 

temperatures, more intense 

precipitation events, and increased 

summer continental drying (Field et al. 

1999, pp. 1–3; Hayhoe et al. 2004, p. 

12422; Cayan et al. 2005, p. 6; 

Intergovernmental Panel on Climate 

Change (IPCC) 2007, p. 1181). Climate 

change may lead to increased frequency 

and duration of severe storms and 

droughts (Golladay et al. 2004, p. 504; 

McLaughlin et al. 2002, p. 6074; Cook 

et al. 2004, p. 1015). According to the 

America’s Longleaf Regional Working 

Group (2009, p. 19), the U.S. 

Department of Agriculture concluded 

that longleaf pine may extend its range 

northward, but will likely lose very 

little of its southern range. The Hadley 

Centre model suggests that savanna and 

grasslands may expand and replace 

southeastern pine forests at some sites 

in the coastal plain due to increased 

moisture stress (America’s Longleaf 

Regional Working Group 2009, p. 19). 

While the effects of climate change on 

longleaf ecosystem plant communities 

have not been well studied, one report 

concluded that while longleaf pine 

might perform well with increased 

carbon dioxide, the herbaceous species 

may not compete as well (America’s 

Longleaf Regional Working Group 2009, 

p. 19). 

The information currently available 

on the effects of global climate change 

and increasing temperatures does not 

make sufficiently precise estimates of 

the location and magnitude of the 

effects. Nor are we currently aware of 

any climate change information specific 

to the habitat of Carex lutea that would 

indicate what areas may become 

important to the species in the future. 

Therefore, as explained in our March 

10, 2010, proposed rule (75 FR 11080), 

we are unable to determine what 

additional areas, if any, may be 

appropriate to include in the final 

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critical habitat for this species to 

address the effects of climate change. 

We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be required for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: (1) 

Conservation actions implemented 

under section 7(a)(1) of the Act, (2) 

regulatory protections afforded by the 

requirement in section 7(a)(2) of the Act 

for Federal agencies to insure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species, and (3) the 

prohibitions of section 9 of the Act if 

actions occurring in these areas may 

affect the species. Federally funded or 

permitted projects affecting listed 

species outside their designated critical 

habitat areas may still result in jeopardy 

findings in some cases. These 

protections and conservation tools will 

continue to contribute to recovery of 

this species. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans (HCPs), or other species 

conservation planning efforts if new 

information available at the time of 

these planning efforts calls for a 

different outcome. 

Physical and Biological Features 

In accordance with section 3(5)(A)(i) 

and 4(b)(1)(A) of the Act and regulations 

at 50 CFR 424.12, in determining which 

areas within the geographical area 

occupied at the time of listing to 

designate as critical habitat, we consider 

the physical and biological features 

essential to the conservation of the 

species and which may require special 

management considerations or 

protection. These include, but are not 

limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historical, geographical, and ecological 

distributions of a species. 

We derived the specific physical and 

biological features required for Carex 

lutea from studies of this species’ 

habitat, ecology, and life history as 

described in the proposed rule to 

designate critical habitat published in 

the Federal Register on March 10, 2010 

(75 FR 11080), the Background section 

of this final rule, and the information 

presented below. Additional 

information can also be found in the 

final listing rule published in the 

Federal Register on January 23, 2002 

(67 FR 3120). 

We have determined that Carex lutea 

requires the following physical and 

biological features. 

Space for Individual and Population 

Growth and for Normal Behavior 

Clonal Growth 

Carex lutea is a caespitose, or 

clumping perennial. New shoots 

develop from a central point, forming a 

tufted clump of vegetation that is 

genetically identical to the parent plant. 

The full extent to which a plant can 

expand has not been determined. 

Therefore, based on the information 

above, we identify bare soil areas 

immediately adjacent to existing clumps 

of mature Carex lutea plants to allow 

room for expansion of the clump to be 

a physical and biological feature 

required for this species. 

Food, Water, Air, Light, Minerals, or 

Other Nutritional or Physiological 

Requirements 

Water 

Although the specific water needs of 

the species are unknown, Carex lutea is 

found in wet to saturated to periodically 

inundated soils. The largest populations 

are found in the wet to saturated 

ecotones of savannas and hardwood 

forests. At a few sites, the plants are 

most abundant in wet to saturated soils 

adjacent to drainage ditches, and in the 

saturated to inundated ditches 

themselves. The occurrence of 

individuals in ditches is likely due to 

the wetter soils of the ditches, or the 

washing of seeds into the ditches from 

adjacent habitat or both. It should be 

noted that seeds produced from 

populations located in ditches may be 

transported to unsuitable habitat during 

precipitation events. 

Sometimes Carex lutea occurs in very 

wet soil in areas of savanna habitat 

characterized by an open to absent 

canopy, suggesting that its abundance in 

the savanna-wet hardwood ecotone is 

strongly influenced by hydrologic 

conditions as well as by edaphic 

(influenced by factors inherent in the 

soil rather than by climatic factors) or 

light conditions or both. The annual 

average precipitation in Wilmington, 

NC, (which is approximately 25 mi (40 

km) south-southwest of the epicenter of 

Carex lutea) is 54.3 inches (138 cm) 

(http://www.weatherpages.com/variety/ 

precip.html). 

Light 

Most Carex lutea plants occur in the 

partially tree-shaded ecotone between 

savannas and hardwood swamps, with 

scattered shrubs and a moderate to 

dense herb layer. The savanna/ 

hardwood swamp ecotone is subject to 

frequent fires, which favor an 

herbaceous ground layer and suppress 

shrub dominance. There is evidence 

that increased shading and shrub 

competition from fire suppression has 

resulted in the reduction in the number 

of individuals observed. 

Soil 

Carex lutea occurs on a wide variety 

of mapped soil types, including fine 

sands (Mandarin and Pactolus), loamy 

sands (Stallings), loamy fine sands 

(Foreston and Grifton), fine sandy loams 

(Torhunta and Woodington), and loams 

(Muckalee). The soils are formed from 

marine sediments and have a range of 

permeability (from rapid to moderately 

rapid) and drainage class (from well 

drained to very poorly drained). Soil 

tests at the type site (The Neck Savanna) 

indicate that microsites not supporting 

Carex lutea regularly test at lower pH 

levels than those supporting Carex 

lutea, with values at inhabited sites 

ranging from a pH of 5.5 to 7.2, with a 

mean of 6.7 (Glover 1994, p. 7). This 

finding may indicate a preference to 

soils with a high base saturation or low 

aluminum saturation or both. The extent 

of the soils with these chemical 

characteristics is usually limited within 

the Coastal Plain and, therefore, is 

normally not mapped as separate soil 

map units due to the scale of mapping. 

Temperature 

The outer southeastern coastal plain 

of North Carolina experiences hot and 

humid subtropical summers and cool 

temperate winters with subfreezing 

periods. Persistent snow accumulation 

is rare. The average crop growing season 

(daily minimum temperature higher 

than 32 degrees Fahrenheit (0 degrees 

Celsius)) for Onslow County is 162 days 

(Barnhill 1992, p. 99) and for Pender 

County is 185 days (Barnhill 1990, p. 

105). We have no information about the 

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11092 Federal Register / Vol. 76, No. 40 / Tuesday, March 1, 2011 / Rules and Regulations 

tolerance of Carex lutea to temperature 

extremes. 

In summary, based on the information 

above, we identify wet to completely 

saturated loamy fine sands, fine sands, 

fine sandy loams, and loamy sands soils 

with a pH of 5.5 to 7.2, in sunny to 

partially tree-shaded areas or ecotones 

between savannas and hardwood forests 

to be a physical and biological feature 

required for this species. 

Sites for Breeding, Reproduction, or 

Rearing (or Development) of Offspring 

The reproductive biology of Carex 

lutea is unknown; however, due to the 

observation of ample mature seed 

production, we can confidently surmise 

that Carex lutea reproduces both 

sexually, involving gravity and winddispersed pollen, as well as vegetatively 

(LeBlond 1996, p. 19). Perigynia (a 

special bract that encloses the achene of 

a Carex species) are dispersed when 

they detach individually or a few at a 

time from the spikes, thereby depositing 

the fruits on the substrate adjacent to 

the maternal parent (LeBlond 1996, p. 

19; LeBlond pers. comm. 2010). Seeds 

have been observed in ditches adjacent 

to colonies, indicating dispersal by 

precipitation sheet flow. Animals may 

also be seed dispersers; the perigynia 

beaks are minutely serrulate (minutely 

serrated), perhaps for attachment to fur 

(LeBlond 1996, p. 19). Survival rates of 

individual plants are unknown. Based 

on observation of the larger known 

populations, it appears that Carex lutea 

is a successful colonizer of suitable 

newly disturbed areas (LeBlond 1996, p. 

19). 

In summary, based on the information 

above, we identify areas of bare soil 

immediately adjacent (within 12 inches 

(30 cm)) to mature Carex lutea plants 

where seeds may fall and germinate to 

be a physical and biological feature 

required for this species. 

Habitats Protected From Disturbance or 

Representative of the Historic, 

Geographical, and Ecological 

Distributions of the Species 

The area supporting the Carex lutea 

populations is located in the Black River 

section of the Coastal Plain Province, 

and within the Northeast Cape Fear 

River watershed. The land surface is 

characterized by large areas of broad, 

level flatlands and shallow stream 

basins. The broad flatlands support 

longleaf pine forests, pond pine 

woodlands, shrub swamp pocosins, 

pine plantations, and cropland. The 

geology is characterized by 

unconsolidated sand overlying layers of 

clayey sand and weakly consolidated 

marine shell deposits (coquina 

limestone). These sediments were 

deposited and reshaped during several 

cycles of coastal emergence and 

submergence from the Cretaceous 

period to the present (LeBlond et al. 

1994, p. 159). 

More specifically, Carex lutea occurs 

in the Very Wet Clay Variant of the Pine 

Savanna community (Schafale 1994, p. 

136) or its ecotones. Community 

structure is characterized by an open to 

sparse canopy dominated by pond pine 

(Pinus serotina), and usually with some 

longleaf pine (Pinus palustris) and pond 

cypress (Taxodium ascendens). The 

shrub layer typically is sparse to patchy, 

with wax myrtle (Morella carolinensis), 

ti-ti (Cyrilla racemiflora), ink berry (Ilex 

glabra), myrtle dahoon (Ilex myrtifolia), 

and black highbush blueberry 

(Vaccinium fuscatum) prominent. 

Juvenile red maple (Acer rubrum var. 

trilobum) and swamp tupelo (Nyssa 

biflora) are often present. The herb layer 

is dense, and dominated by 

combinations of toothache grass 

(Ctenium aromaticum), cutover muhly 

(Muhlenbergia expansa), Carolina 

dropseed (Sporobolus pinetorum), and 

several Rhynchospora taxa (e.g., globe 

beaksedge (R. globularis var. 

pinetorum), sandswamp whitetop (R. 

latifolia), and Thorne’s beakrush (R. 

thornei)). National vegetation type 

classification places this natural 

community in the Pinus palustris— 

Pinus serotina/Sporobolus pinetorum— 

Ctenium aromaticum—Eriocaulon 

decangulare var. decangulare (Tenangle 

pipewort) Woodland association of the 

Pinus palustris—Pinus (P. elliottii, P. 

serotina) Saturated Woodland Alliance 

(NatureServe 2010). This association is 

equivalent to the Pine Savanna (Very 

Wet Clay Variant), a natural community 

type with fewer than 10 occurrences 

globally (Schafale 1994, p. 136). The 

Pine Savanna Very Wet Clay Variant is 

known only from the Maple Hill area 

near the Onslow/Pender County line 

and north and west of Holly Shelter 

Game Land, and from the Old Dock area 

of the Waccamaw River watershed along 

the Brunswick/Columbus County line. 

In summary, based on the information 

above, we identify areas containing the 

natural plant community that would be 

identified as the Pine Savanna (Very 

Wet Clay Variant) according to 

methodology used in Schafale (1994, p. 

136) to be essential for this species. The 

structure of this community is 

characterized by an open to sparse 

canopy dominated by pond pine, and 

usually with some longleaf pine and 

pond cypress. 

Primary Constituent Element for Carex 

lutea 

Under the Act and its implementing 

regulations, we are required to identify 

the physical and biological features 

essential to the conservation of Carex 

lutea in areas occupied at the time of 

listing, focusing on the features’ primary 

constituent elements. We consider 

primary constituent elements to be the 

elements of physical and biological 

features that, when laid out in the 

appropriate quantity and spatial 

arrangement to provide for a species’ 

vital life-history functions, are essential 

to the conservation of the species. Areas 

designated as critical habitat for Carex 

lutea contain only occupied areas 

within the species’ historical geographic 

range, and contain the primary 

constituent element which supports the 

species’ life-history functions. 

Based on the above needs and our 

current knowledge of the life history, 

biology, and ecology of the species and 

the habitat requirements for sustaining 

the essential life-history functions of the 

species, we have determined that the 

single primary constituent element for 

Carex lutea is a Pine Savanna (Very Wet 

Clay Variant) natural plant community 

or ecotones that contain: 

(1) Moist to completely saturated 

loamy fine sands, fine sands, fine sandy 

loams, and loamy sands soils with a pH 

of 5.5 to 7.2; 

(2) Open to relatively open canopy 

that allows full to partial sunlight to 

penetrate to the herbaceous layer 

between savannas and hardwood 

forests; and 

(3) Areas of bare soil immediately 

adjacent (within 12 inches (30 

centimeters)) to mature Carex lutea 

plants where seeds may fall and 

germinate or existing plants may expand 

in size. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(1)(A) of 

the Act, we used the best scientific and 

commercial data available to designate 

critical habitat. We reviewed available 

information pertaining to the habitat 

requirements of this species. In 

accordance with the Act and its 

implementing regulations at 50 CFR 

424.12(e), we considered whether 

designating additional areas—outside 

those currently occupied as well as 

those occupied at the time of listing— 

are necessary to ensure the conservation 

of the species. 

In order to determine which sites 

were occupied at the time of listing, we 

used the NCNHP database of rare 

species (NCNHP 2009). If an element 

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occurrence (EO) record or site was first 

observed after the species was listed 

(effective on February 22, 2002), then 

we considered that those sites were 

unknown at the time of listing. Five 

subunits were first observed after 

February 22, 2002. However, given what 

we know about the biology of this 

species and the habitats where it occurs, 

those five subunits were likely occupied 

at the time the species was listed. The 

occurrence at Watkins Savannah 

(O’Berry Tract C) (Element Occurrence 

(EO) 5.19) was found during surveys for 

Carex lutea in 2006. The two sites on 

Ashes Creek at the Southwest Ridge 

Savanna (EO 11) were found during 

surveys for Carex lutea in 2002, just 3 

months after the species was listed. In 

2007, surveys for Carex lutea at the 

McLean Savanna yielded two new 

subpopulations of Carex lutea (EOs 

24.22 and 24.23). Carex lutea was 

already known from a site nearby, and 

all three of these subpopulations are 

now considered to be part of one 

population. Subunits 5D and 8C were 

expanded after field work in 2010 

indicated that the populations were 

larger than previously believed. To the 

best of our knowledge, these areas had 

not been surveyed for Carex lutea 

previously, and we have no reason to 

believe that the plant was imported or 

had dispersed into these areas from 

other areas after Carex lutea was listed 

in 2002. Based on the biology of this 

species and its limited ability for the 

seeds to move and colonize new areas, 

the occurrences identified since listing 

likely were in existence for many years 

prior to listing and were only recently 

detected due to increased awareness of 

this species. 

We have also reviewed available 

information that pertains to the habitat 

requirements of this species including 

NCNHP data, the original species 

description (LeBlond et al. 1994, pp. 

159–160), the status survey (LeBlond 

1996, pp. 11–13), the Service’s draft 

Recovery Plan and the 5-Year Review, 

regional Geographic Information System 

(GIS) coverages, survey reports, and 

other relevant information. 

We identified critical habitat based on 

areas that are currently occupied by 

Carex lutea. These areas occur on rare 

or unique habitat (the Very Wet Clay 

Variant of the Pine Savanna community, 

remnant savannas, or ecotones thereof) 

within the species’ range and contain all 

of the PCEs. Because so few populations 

are known to exist, they are all 

important to the long-term survival and 

recovery of the species. We are 

designating eight units (21 subunits) 

based on sufficient quantity and 

arrangement of the PCEs being present 

to support Carex lutea’s life processes. 

When determining critical habitat 

boundaries, we made every effort to 

avoid including developed areas, such 

as lands covered by buildings, roads, 

and other structures, because such lands 

lack the physical and biological features 

for Carex lutea. The scale of the maps 

we prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed lands. Any 

such lands inadvertently left inside 

critical habitat boundaries shown on the 

maps of this rule have been excluded by 

text in the rule and are not designated. 

Therefore, if the critical habitat is 

finalized, a Federal action involving 

these lands would not trigger section 7 

consultation with respect to critical 

habitat and the requirement of no 

adverse modification unless the specific 

action would affect the physical and 

biological features in the adjacent 

critical habitat. 

To the best of our knowledge, there 

are no areas that were not occupied by 

the species at the time it was listed that 

are essential to the conservation of 

Carex lutea. All of the areas designated 

as critical habitat for Carex lutea are 

currently occupied by the species and 

contain the essential physical and 

biological features. All of the areas 

designated as critical habitat are also 

within the known historical range of the 

species. Therefore, we are not 

designating any areas outside the 

geographical area occupied by the 

species at the time of listing. We believe 

that the occupied areas are sufficient for 

the conservation of the species. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain 

features that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. 

The major threats to the features in 

the areas identified as critical habitat for 

Carex lutea include: Habitat alteration; 

conversion of its limited habitat for 

residential, commercial, or industrial 

development; mining; drainage 

activities associated with silviculture 

and agriculture; suppression of fire; 

highway expansion; and herbicide use 

along utility and highway rights-of-way. 

Through our review of the existing data 

on Carex lutea, we conclude that these 

threats, which were also listed in the 

final listing rule (67 FR 3120, January 

23, 2002), continue to impact this 

species and its essential physical and 

biological features. 

The destruction of habitat or 

conversion of habitat for residential, 

commercial, or industrial development 

can change the topography, soils, and 

general character of the site, making it 

uninhabitable for Carex lutea. These 

activities can remove the primary 

constituent element by removing soil 

(by grading) and changing Carex lutea 

habitat to developed land, which is 

unsuitable for the species. 

Drainage activities associated with 

silviculture and agriculture may alter 

the hydrology, which can change the 

groundwater levels and the amount of 

moisture in the soil, creating conditions 

under which Carex lutea may not be 

able to survive. Further, removal of 

existing vegetation or the planting of 

trees for silviculture may change the 

existing conditions such that Carex 

lutea plants no longer receive optimal 

amounts of sunlight. 

The close proximity of roadways and 

power line corridors to populations of 

Carex lutea may affect the species. 

Herbicide treatment to maintain 

vegetation in rights-of-ways has the 

potential to kill non-target plant species 

such as Carex lutea. Highway expansion 

may change the local topography and 

affect water runoff making the site drier 

or wetter than is optimal for Carex lutea. 

Mining has been documented in close 

proximity to one Carex lutea 

population. Mining activities may alter 

many aspects of Carex lutea habitat. 

Heavy equipment can compact or 

remove the appropriate soils. The 

grading of areas adjacent to Carex lutea 

habitat can change the hydrology of 

those areas and make them more 

susceptible to invasion by nonnative 

plant species. 

Regular fire in areas where Carex 

lutea occurs helps to maintain the open 

savanna habitat that is conducive to 

Carex lutea growth. Fire reduces 

competition and allows seeds to 

germinate in open, bare soil areas. Fire 

suppression in areas where Carex lutea 

occurs may result in the growth of 

shrubs and trees that will eventually 

shade out herbaceous species such as 

Carex lutea. Fire suppression also 

allows the invasion of nonindigenous 

plants and animals that are not fireadapted. 

All of these activities may in turn lead 

to the disruption of the growth and 

reproduction of Carex lutea. 

In summary, we find that the areas we 

are designating as critical habitat 

contain the features essential to the 

conservation of Carex lutea, and that 

these features may require special 

management considerations or 

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11094 Federal Register / Vol. 76, No. 40 / Tuesday, March 1, 2011 / Rules and Regulations 

protection. Special management 

considerations or protection may be 

required to eliminate, or reduce to 

negligible level, the threats affecting 

each unit or subunit and to preserve and 

maintain the essential features that the 

critical habitat units and subunits 

provide to Carex lutea. Additional 

discussions of threats facing individual 

sites are provided in the individual unit 

and subunit descriptions. 

Final Critical Habitat Designation 

We are designating 8 units (21 

subunits) totaling approximately 202 ac 

(82 ha) as critical habitat for Carex lutea. 

They constitute our current best 

assessment of areas that meet the 

definition of critical habitat for Carex 

lutea. The eight areas designated as 

critical habitat, which are described 

below, are: (1) Unit 1: Watkins Savanna, 

(2) Unit 2: Haws Run Mitigation Site, (3) 

Unit 3: Maple Hill School Road 

Savanna, (4) Unit 4: Southwest Ridge 

Savanna, (5) Unit 5: Sandy Run 

Savannas, (6) Unit 6: The Neck Savanna, 

(7) Unit 7: Shaken Creek Savanna, and 

(8) Unit 8: McLean Savanna. All units 

were occupied at the time of listing and 

are currently occupied. 

The name, ownership information, 

and approximate size of each designated 

critical habitat unit and subunit are 

shown in Table 2. As described above, 

we assessed all areas we are designating 

as critical habitat to ensure that they 

provide the requisite primary 

constituent element as defined in this 

final rule. 

TABLE 2—DESIGNATED CRITICAL HABITAT UNITS FOR Carex lutea—AREA ESTIMATES REFLECT ALL LAND WITHIN

CRITICAL HABITAT UNIT BOUNDARIES

Unit Subunit Land ownership by type Size of unit acres 

(hectares) 

1 ........................................................................... A NCDPR ................................................................ 1.2 (0.5) 

1 ........................................................................... B Private, NCDPR ................................................... 2.0 (0.8) 

1 ........................................................................... C NCDPR ................................................................ 0.6 (0.2) 

2 ........................................................................... N/A NCDOT ................................................................ 27.1 (11.0) 

3 ........................................................................... N/A Private .................................................................. 27.7 (11.2) 

4 ........................................................................... A NCWRC with Progress Energy, Right-of-way 

(ROW).

2.3 (0.9) 

4 ........................................................................... B NCWRC with Progress Energy, ROW ................ 1.0 (0.4) 

5 ........................................................................... A NCDPR with Progress Energy, ROW ................. 2.6 (1.1) 

5 ........................................................................... B NCDPR ................................................................ 4.3 (1.7) 

5 ........................................................................... C NCDPR ................................................................ 0.3 (0.1) 

5 ........................................................................... D NCDPR ................................................................ 4.9 (2.0) 

5 ........................................................................... E NCDPR with Progress Energy, ROW ................. 13.1 (5.3) 

6 ........................................................................... A NCDPR ................................................................ 3.6 (1.5) 

6 ........................................................................... B Private .................................................................. 0.7 (0.3) 

6 ........................................................................... C Private with Powerline ROW ............................... 0.1 (0.04) 

7 ........................................................................... A Private (TNC) ....................................................... 6.9 (2.8) 

7 ........................................................................... B Private (TNC) ....................................................... 24.7 (10.0) 

7 ........................................................................... C Private (TNC) ....................................................... 26.1 (10.6) 

8 ........................................................................... A Private (TNC) ....................................................... 42.3 (17.1) 

8 ........................................................................... B Private .................................................................. 0.5 (0.2) 

8 ........................................................................... C Private (TNC), Private ......................................... 9.8 (4.0) 

Total * ............................................................ .............................. .............................................................................. 201.8 (81.7) 

* Note: Area sizes may not sum due to rounding. 

We present brief descriptions of each 

unit and reasons why they meet the 

definition of critical habitat below. 

Unit 1: Watkins Savanna, Pender 

County, North Carolina 

Unit 1 consists of 3.8 ac (1.5 ha) and 

includes three subunits in Pender 

County, NC. This critical habitat unit 

includes habitat for Carex lutea that is 

under private and State ownership. This 

unit contains three element occurrences, 

two of which were known at the time of 

listing. All three subunits contain the 

primary constituent element identified 

for Carex lutea; however, they are all 

very fire-suppressed and have been 

altered by timber management. The 

NCDPR is currently negotiating with the 

NCNHP to designate this site as a 

Dedicated Nature Preserve. 

Subunit A (EO 5.12) consists of 1.2 ac 

(0.5 ha) and was known to be occupied 

at the time of listing. It is owned by 

NCDPR and is managed as part of the 

Sandy Run Savannas State Natural Area. 

Subunit B (EO 5.13) consists of 2.0 ac 

(0.8 ha) and was known to be occupied 

at the time of listing. It is owned by 

private entities and NCDPR. NCDPR 

plans to manage their portion of the 

subunit as part of the Sandy Run 

Savannas State Natural Area. 

Subunit C (EO 5.19) consists of 0.6 ac 

(0.2 ha) and was not known to be 

occupied at the time of listing. This 

Carex lutea site was discovered in 2006; 

however, based on the habitat 

conditions at this site and the biology of 

the species, we believe that this site was 

occupied in 2002, when the species was 

listed. It is in conservation ownership 

by NCDPR and is managed as part of the 

Sandy Run Savannas State Natural Area. 

Unit 2: Haws Run Mitigation Site, 

Onslow County, North Carolina 

Unit 2 (EO 7) consists of 27.1 ac (11.0 

ha) in Onslow County, NC. This critical 

habitat unit includes habitat for Carex 

lutea and was occupied at the time of 

listing. It is owned by the NC 

Department of Transportation and is 

managed by the NC Ecosystem 

Enhancement Program. This site was 

purchased as mitigation for wetland 

impacts from nearby transportation 

projects. Although the site is somewhat 

fire-suppressed and has been altered by 

timber management, it contains the 

primary constituent element identified 

for Carex lutea. The land managers 

conducted a prescribed fire in the 

vicinity of the Carex lutea plants during 

the summer of 2009 and will continue 

restoration efforts there. The population 

at this site appears to be stable and not 

vulnerable to extirpation. Managers are 

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considering designating this site as a 

Dedicated Nature Preserve by the 

NCNHP. 

Unit 3: Maple Hill School Road 

Savanna, Pender County, North 

Carolina 

Unit 3 (EO 10) consists of 27.7 ac 

(11.2 ha) in Pender County, NC. This 

site is privately owned and has not been 

revisited since it was discovered in 

1998. It was occupied at the time of 

listing. Although three clumps of Carex 

lutea were discovered here in 1998, the 

full extent of the population is unknown 

and the habitat is vulnerable to land use 

changes. This site contains the primary 

constituent element identified for Carex 

lutea. 

Unit 4: Southwest Ridge Savanna, 

Pender County, North Carolina 

Unit 4 (EO 11) consists of 3.3 ac (1.3 

ha) in two subunits in Pender County, 

NC. This unit is owned by NC Wildlife 

Resources Commission and is managed 

for conservation purposes. These two 

subpopulations were discovered in May 

2002, shortly after the species was listed 

as endangered (effective February 22, 

2002). Because the species is nearly 

impossible to identify unless it is 

flowering, and plants less than 3 months 

old would not be expected to flower in 

May, it seems reasonable to assume that 

the plants discovered in May 2002 were 

present prior to the 2002 growing season 

and that the site was occupied at the 

time of listing. The Carex lutea plants 

occur in a power line right-of-way 

easement that is managed by Progress 

Energy. The utility company entered 

into a Registry Agreement with the 

NCNHP and agreed not to use 

herbicides or mow during critical Carex 

lutea growth periods. This population is 

relatively small in size compared to 

some of the other populations, but 

appears to be stable. The subunits 

contain the primary constituent element 

identified for Carex lutea. 

Subunit A is 2.3 ac (0.9 ha) in size 

and is located southwest of Ashes 

Creek. 

Subunit B is 1.0 ac (0.4 ha) in size and 

is located northeast of Ashes Creek. 

Unit 5: Sandy Run Savannas, Onslow 

County, North Carolina 

Unit 5 consists of 25.2 ac (10.2 ha) in 

Onslow County, NC, and is divided into 

five subunits. This critical habitat unit 

is owned by NCDPR and managed as 

part of the Sandy Run Savannas State 

Natural Area. All five Carex lutea sites 

were known at the time of listing. This 

unit is a remnant pine savanna, and the 

subunits contain the primary 

constituent element identified for Carex 

lutea; however, the subunits are all firesuppressed and have been altered by 

timber management, including bedding 

and ditching. The NCDPR is currently 

negotiating the designation of a 

Dedicated Nature Preserve with the 

NCNHP. 

Subunit A (EO 15.3) consists of 2.6 ac 

(1.1 ha) and occurs on the east side of 

NC 50. Progress Energy has a 

transmission line right-of-way through 

this subunit and has entered into a 

Registry Agreement with the NCNHP in 

which they have agreed not to use 

herbicides or mow during critical Carex 

lutea growth periods. 

Subunit B (EO 15.4) consists of 4.3 ac 

(1.7 ha) and occurs contiguous to and 

along the north side of a private sand 

road through the property. 

Subunit C (EO 15.4) consists of 0.3 ac 

(0.1 ha) and occurs along the south side 

of a private sand road through the 

property and on the west side of a small 

stream swamp. The plants are growing 

in an old, wet road bed. 

Subunit D (EO 15.4) consists of 4.9 ac 

(2.0 ha) and occurs along the south and 

north sides of a private sand road 

through the property and on the east 

side of a small stream swamp. The 

Carex lutea plants are growing in a 

roadside ditch and along a fire break 

and in associated low, moist areas. The 

private sand road is not considered part 

of this critical habitat designation. 

Subunit E (EO 15.14) consists of 13.1 

ac (5.3 ha) and occurs contiguous to and 

on the west side of NC 50. Progress 

Energy has a transmission line right-ofway through this subunit and has 

entered into a Registry Agreement with 

the NCNHP in which they have agreed 

not to use herbicides or mow during 

critical Carex lutea growth periods. 

Unit 6: The Neck Savanna, Pender 

County, North Carolina 

Unit 6 consists of 4.4 ac (1.8 ha) in 

Pender County, NC, and is divided into 

three subunits. This critical habitat unit 

includes habitat for Carex lutea that is 

under private and State ownership. This 

unit contains three element occurrences, 

two of which were known at the time of 

listing. The subunits contain the 

primary constituent element identified 

for Carex lutea; however, they are all 

very fire-suppressed and have been 

altered by timber management. The 

NCDPR is currently negotiating the 

designation of a Dedicated Nature 

Preserve with the NCNHP. Privately 

owned portions of this property are 

threatened by fire suppression, timber 

harvesting, and herbicide use. Drainage 

ditches impact the hydrology of the 

soils in this area. 

Subunit A (EO 18.1) consists of 3.6 ac 

(1.5 ha), is the type locality for Carex 

lutea, and was known to be occupied at 

the time of listing. It is owned by 

NCDPR and will become part of the 

Sandy Run Savannas State Natural Area. 

Subunit B (EO 18.16) consists of 0.7 

ac (0.3 ha) and is privately owned. It is 

currently threatened by fire 

suppression, but the managers are 

hopeful that they will be able to burn 

this tract within the next year or two. 

Subunit C (EO 18.17) consists of 0.1 

ac (0.04 ha), is privately owned, and 

occurs in a small power-line corridor 

along a roadside. It is vulnerable to 

woody growth and herbicide use in the 

power line. There has been little 

management of the site with prescribed 

fire due to difficult land ownership 

patterns. 

Unit 7: Shaken Creek Savanna, Pender 

County, North Carolina 

Unit 7 consists of 57.7 ac (23.4 ha) in 

Pender County, NC, and is divided into 

three subunits. This critical habitat unit 

includes habitat for Carex lutea that is 

under private ownership. This area is 

owned and managed by TNC. The 

hunting rights are separately owned by 

private individuals and are tied to a 

hunt club. This unit contains three 

element occurrences, all of which were 

known at the time of listing. This 

savanna complex contains the highest 

quality natural habitat and the largest 

population of Carex lutea known. With 

continued fire management, this site 

should remain stable. The subunits all 

contain the primary constituent element 

identified for Carex lutea. 

Subunit A (EO 21.8) consists of 6.9 ac 

(2.8 ha) immediately south of Flo Road 

and east of Alligator Lake Road. 

Subunit B (EO 21.8) consists of 24.7 

ac (10.0 ha) immediately south of Flo 

Road and west of Alligator Lake Road. 

Subunit C (EO 21.20) consists of 26.1 

ac (10.6 ha) immediately south of Flo 

Road and approximately 1,800 feet (549 

meters) west of Alligator Lake Road. 

Unit 8: McLean Savanna, Pender 

County, North Carolina 

Unit 8 consists of 52.6 ac (21.3 ha) 

and includes three subunits in Pender 

County, NC. This site is known as 

McLean Savanna or McLean Family 

Farms and has been kept open for 

hunting through the use of prescribed 

burning. Carex lutea occurs over an 

extensive area, and it is one of the larger 

populations known. Each of the three 

subunits contains the primary 

constituent element identified for Carex 

lutea. 

Subunit A (EO 24.9) is 42.3 ac (17.1 

ha) in size and is owned by TNC. Carex 

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lutea occupied this area at the time of 

listing. 

Subunit B (EO 24.22) is 0.5 ac (0.2 ha) 

in size and is privately owned. This 

Carex lutea population was discovered 

in June 2007, after the species was 

listed; however, based on what we know 

about the biology of the species, we 

believe that this site was occupied at the 

time of listing. 

Subunit C (EO 24.23) is 9.8 ac (4.0 ha) 

in size and is owned by both private 

entities and TNC. This Carex lutea 

population was also discovered in June 

2007, after the species was listed. In 

2010, we discovered that the extent of 

the population was much greater than 

we originally thought. Based on what 

we know about the biology of the 

species, we believe that this site was 

occupied at the time of listing. 

Because the savannas on the McLean 

Family Farms have been managed by 

fire for many years to facilitate hunting, 

and one subpopulation (Subunit A) has 

been known on this property since 

1997, it is reasonable to believe that 

these other subpopulations (Subunits B 

and C) have also occurred there for 

many years and were just undetected 

because those areas had not been 

surveyed specifically for Carex lutea 

until 2007. 

The Service believes that all critical 

habitat units and subunits are currently 

occupied by Carex lutea. In addition, 

based on our knowledge of the species 

and our best professional judgment, we 

believe that these critical habitat units 

and subunits were occupied at the time 

the species was listed. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to insure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. Decisions by the Courts of 

Appeals for the Fifth and Ninth Circuits 

have invalidated our definition of 

‘‘destruction or adverse modification’’ 

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F.3d 1059 (9th Cir. 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service, 245 F.3d 434 (5th Cir. 

2001)), and we do not rely on this 

regulatory definition when analyzing 

whether an action is likely to destroy or 

adversely modify critical habitat. Under 

the statutory provisions of the Act, we 

determine destruction or adverse 

modification on the basis of whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional (or 

retain the current ability for the primary 

constituent elements to be functionally 

established) to serve its intended 

conservation role for the species. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to insure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of such a species or 

to destroy or adversely modify its 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

(action agency) must enter into 

consultation with us. As a result of this 

consultation, we document compliance 

with the requirements of section 7(a)(2) 

through our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, but are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in jeopardy to a listed species or 

the destruction or adverse modification 

of critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable, to 

avoid these outcomes. We define 

‘‘reasonable and prudent alternatives’’ at 

50 CFR 402.02 as alternative actions 

identified during consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

(3) Are economically and 

technologically feasible, and 

(4) Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where a new 

species is listed or critical habitat is 

subsequently designated that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (such 

discretionary involvement or control 

over the action is authorized by law). 

Consequently, Federal agencies may 

need to request reinitiation of 

consultation with us on actions for 

which formal consultation has been 

completed, if those actions with 

discretionary involvement or control 

may affect subsequently listed species 

or designated critical habitat. 

Federal activities that may affect 

Carex lutea or its designated critical 

habitat require section 7 consultation 

under the Act. Activities on State, 

Tribal, local, or private lands requiring 

a Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from us 

under section 10 of the Act) or involving 

some other Federal action (such as 

funding from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency) are 

subject to the section 7(a)(2) 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local, or private lands that are not 

federally funded, authorized, or 

permitted do not require section 7 

consultations. 

Application of the ‘‘Adverse 

Modification’’ Standard 

In making the adverse modification 

determination, the key factor is whether, 

with implementation of the Federal 

action, the affected critical habitat 

would continue to serve its intended 

conservation role for the species. 

Activities that may destroy or adversely 

modify critical habitat are those that 

alter the physical and biological features 

to an extent that appreciably reduces the 

conservation value of critical habitat for 

Carex lutea. As discussed above, the 

role of critical habitat units is to support 

life-history needs of the species and 

provide for the conservation of the 

species. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that may affect critical 

habitat, when carried out, funded, or 

authorized by a Federal agency, should 

result in consultation for Carex lutea. 

These activities include, but are not 

limited to: 

(1) Actions that would result in 

ground disturbance to sunny to partially 

tree-shaded areas or ecotones between 

savannas and hardwood forests. Such 

activities could include, but are not 

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limited to: Residential, commercial, or 

recreational development; ORV activity; 

dispersed recreation; silviculture 

practices (including timber harvest); 

new road construction or widening; 

existing road and utility maintenance; 

and mining. These activities could 

cause direct loss of Carex lutea 

occupied areas, and affect ecotones by 

damaging or eliminating habitat, 

altering soil composition due to 

increased erosion, and increasing 

densities of nonnative plant species. 

In addition, changes in soil 

composition may lead to changes in the 

vegetation composition, such as growth 

of shrub cover resulting in decreased 

density or vigor of individual Carex 

lutea plants. These activities may also 

lead to changes in water flows and 

inundation periods that would degrade, 

reduce, or eliminate the habitat 

necessary for the growth and 

reproduction of Carex lutea. 

(2) Actions that would significantly 

alter the hydrological regime of sunny to 

partially tree-shaded areas or ecotones 

between savannas and hardwood 

forests. Such activities could include 

residential or recreational development 

adjacent to savanna and hardwood 

forest ecotones, timber harvest and other 

silviculture practices, ORV activity, 

dispersed recreation, new road 

construction or widening, existing road 

and utility line maintenance, and 

mining. These activities could alter 

surface soil layers and hydrological 

regimes in a manner that promotes loss 

of soil matrix components and moisture 

necessary to support the growth and 

reproduction of Carex lutea. 

(3) Actions that would significantly 

reduce pollination or seed set 

(reproduction). Such activities could 

include, but are not limited to, 

residential or recreational development, 

and mowing or herbiciding prior to seed 

set. These activities could prevent 

reproduction by reducing the numbers 

of pollinators, or by removal or 

destruction of reproductive plant parts. 

Exemptions 

Application of Section 4(a)(3) of the Act 

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resources 

management plan (INRMP) by 

November 17, 2001. An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found on the base. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

There were no Department of Defense 

lands with a completed INRMP within 

our proposed critical habitat 

designation. Therefore, we are not 

exempting any lands from this final 

designation of critical habitat for Carex 

lutea under section 4(a)(3)(B)(i) of the 

Act. 

Exclusions 

Application of Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the statute on its face, as well as the 

legislative history, are clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 

Under section 4(b)(2) of the Act, the 

Secretary may exclude an area from 

designated critical habitat based on 

economic impacts, impacts on national 

security, or any other relevant impacts. 

In considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If based on this 

analysis, we make this determination, 

then the Secretary can exert his 

discretion to exclude the area only if 

such exclusion would not result in the 

extinction of the species. 

Economic Impacts 

Under section 4(b)(2) of the Act, we 

consider the economic impacts of 

specifying any particular area as critical 

habitat. In order to consider economic 

impacts, we prepared a draft economic 

analysis (DEA), which we made 

available for public review on August 3, 

2010 (75 FR 45592), based on the March 

10, 2010, proposed rule (75 FR 11080). 

We opened a comment period on the 

DEA until September 2, 2010; however, 

we received no comments on the DEA. 

Following the close of the comment 

period, a final analysis of the potential 

economic effects of the designation was 

developed, taking into consideration 

any new information. 

The intent of the final economic 

analysis (FEA) is to quantify the 

economic impacts of all potential 

conservation efforts for Carex lutea. 

Some of these costs will likely be 

incurred regardless of whether we 

designate critical habitat (baseline). The 

economic impact of the final critical 

habitat designation is analyzed by 

comparing scenarios both ‘‘with critical 

habitat’’ and ‘‘without critical habitat.’’ 

The ‘‘without critical habitat’’ scenario 

represents the baseline for the analysis, 

considering protections already in place 

for the species (e.g., under the Federal 

listing and other Federal, State, and 

local regulations). The baseline, 

therefore, represents the costs incurred 

regardless of whether critical habitat is 

designated. The ‘‘with critical habitat’’ 

scenario describes the incremental 

impacts associated specifically with the 

designation of critical habitat for the 

species. The incremental conservation 

efforts and associated impacts are those 

not expected to occur absent the 

designation of critical habitat for the 

species. In other words, the incremental 

costs are those attributable solely to the 

designation of critical habitat above and 

beyond the baseline costs; these are the 

costs we consider in the final 

designation of critical habitat. The 

analysis looks retrospectively at 

baseline impacts incurred since the 

species was listed (2002), and forecasts 

both baseline and incremental impacts 

likely to occur with the designation of 

critical habitat. 

The FEA also addresses how potential 

economic impacts are likely to be 

distributed, including an assessment of 

any local or regional impacts of habitat 

conservation and the potential effects of 

conservation activities on government 

agencies, private businesses, and 

individuals. The FEA measures lost 

economic efficiency associated with 

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residential and commercial 

development and public projects and 

activities, such as economic impacts on 

water management and transportation 

projects, Federal lands, small entities, 

and the energy industry. Decisionmakers can use this information to 

assess whether the effects of the 

designation might unduly burden a 

particular group or economic sector. 

Finally, the FEA looks retrospectively at 

costs that were incurred since January 

23, 2002, when we listed Carex lutea 

under the Act (67 FR 3120) and 

considers those costs that may occur in 

the 20 years following the designation of 

critical habitat, which was determined 

to be the appropriate period for analysis 

because limited planning information 

was available for most activities to 

forecast activity levels for projects 

beyond a 20-year timeframe. The FEA 

did not identify any economic impacts 

of Carex lutea conservation efforts 

associated with development activities. 

The FEA estimates that no economic 

impacts are likely to result from the 

designation of critical habitat for Carex 

lutea. This determination is based 

primarily on the fact that more than 80 

percent of the lands we are designating 

as critical habitat is already subject to 

conservation measures that benefit the 

plant. Economic impacts are unlikely in 

the remaining 20 percent, given the 

limited potential for future economic 

activity and the low probability of a 

Federal nexus that would require 

consultation with the Service. 

Consequently, the Secretary has 

determined not to exercise his 

discretion to exclude any areas from this 

designation of critical habitat for Carex 

lutea based on economic impacts. A 

copy of the FEA with supporting 

documents may be obtained by 

contacting the Raleigh Fish and Wildlife 

Office (see ADDRESSES) or for 

downloading from the Internet at 

http://www.regulations.gov. 

National Security Impacts 

Under section 4(b)(2) of the Act, we 

consider whether there are lands owned 

or managed by the Department of 

Defense where a national security 

impact might exist. In preparing this 

rule, we have determined that the lands 

within the designation of critical habitat 

for Carex lutea are not owned or 

managed by the Department of Defense, 

and therefore, there are no impacts to 

national security. Consequently, the 

Secretary has determined not to exercise 

his discretion to exclude any areas from 

this designation based on impacts on 

national security. 

Other Relevant Impacts 

Under section 4(b)(2) of the Act, in 

addition to economic impacts and 

impacts on national security, we 

consider any other relevant impacts. In 

determining what other impacts may be 

relevant, we consider a number of 

factors including whether the 

landowners have developed any habitat 

conservation plans (HCPs) or other 

management plans for the area, or 

whether there are conservation 

partnerships that would be encouraged 

by designation of, or exclusion from, 

critical habitat. In addition, we look at 

any Tribal issues, and consider the 

government-to-government relationship 

of the United States with Tribal entities. 

We also consider any social impacts that 

might occur because of the designation. 

In preparing this rule, we have 

determined that there are currently no 

HCPs or other management plans for 

Carex lutea. Additionally, the 

designation does not include any Tribal 

lands or trust resources. We anticipate 

no impact to Tribal lands, partnerships, 

or HCPs or other management plans 

from this critical habitat designation. 

Consequently, the Secretary has 

determined not to exercise his 

discretion to exclude any areas from this 

designation based on other relevant 

impacts. 

Required Determinations 

Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant under Executive Order 

12866 (E.O. 12866). OMB bases its 

determination upon the following four 

criteria: 

(1) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(2) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(3) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(4) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare and make available for public 

comment a regulatory flexibility 

analysis that describes the effects of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of the 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The SBREFA amended RFA to require 

Federal agencies to provide a statement 

of the factual basis for certifying that the 

rule will not have a significant 

economic impact on a substantial 

number of small entities. In this final 

rule, we are certifying that the critical 

habitat designation for Carex lutea will 

not have a significant economic impact 

on a substantial number of small 

entities. The following discussion 

explains our rationale. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; as well as small 

businesses (13 CFR 121.201). Small 

businesses include manufacturing and 

mining concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term significant economic 

impact is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the critical habitat 

designation for Carex lutea could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities, 

such as residential and commercial 

development. We apply the ‘‘substantial 

number’’ test individually to each 

industry to determine if certification is 

appropriate. However, the SBREFA does 

not explicitly define ‘‘substantial 

number’’ or ‘‘significant economic 

impact.’’ Consequently, to assess 

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whether a ‘‘substantial number’’ of small 

entities is affected by this designation, 

this analysis considers the relative 

number of small entities likely to be 

impacted in an area. In some 

circumstances, especially with critical 

habitat designations of limited extent, 

we may aggregate across all industries 

and consider whether the total number 

of small entities affected is substantial. 

In estimating the number of small 

entities potentially affected, we also 

consider whether their activities have 

any Federal involvement. 

Designation of critical habitat only 

affects activities authorized, funded, or 

carried out by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

authorize, fund, or carry out that may 

affect Carex lutea. Federal agencies also 

must consult with us if their activities 

may affect critical habitat. Designation 

of critical habitat, therefore, could result 

in an additional economic impact on 

small entities due to the requirement to 

reinitiate consultation for ongoing 

Federal activities (see Application of the 

‘‘Adverse Modification’’ Standard 

section). 

In our FEA of the critical habitat 

designation, we evaluated the potential 

economic effects on small entities 

resulting from conservation actions 

related to the designation of critical 

habitat for Carex lutea. The analysis is 

based on the estimated impacts 

associated with the rulemaking as 

described in Chapters 4 through 6 of the 

FEA, and evaluated the potential for 

economic impacts related to 

development and silvicultural activities. 

The economic analysis additionally 

considered the potential economic 

impacts of the designation on 

transportation and utilities projects, but 

concluded that these activities were not 

likely to incur measurable economic 

impacts. 

As discussed in Chapter 4 and 

Appendix A, the FEA did not identify 

any incremental costs resulting from the 

critical habitat designation. This 

determination is based on the fact that 

more than 80 percent of the critical 

habitat we are designating in this rule is 

already subject to conservation 

measures that benefit the plant. 

Economic impacts are unlikely in the 

remaining 20 percent, given the limited 

potential for future economic activity 

and the low probability of a Federal 

nexus that would require consultation 

with the Service. Therefore, based on 

this analysis, we do not expect this 

regulation to have a significant impact 

on any small businesses. 

In summary, we considered whether 

this designation will result in a 

significant economic impact on a 

substantial number of small entities, 

and we determined that we do not 

expect this regulation to have a 

significant impact on any small entities. 

Therefore, we are certifying that the 

designation of critical habitat for Carex 

lutea will not have a significant 

economic impact on a substantial 

number of small entities, and a 

regulatory flexibility analysis is not 

required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. The 

OMB has provided guidance for 

implementing this Executive Order that 

outlines nine outcomes that may 

constitute ‘‘a significant adverse effect’’ 

when compared to no regulatory action 

under consideration. As discussed in 

Appendix A, the FEA finds that none of 

these criteria are relevant to this 

analysis. The economic analysis 

concludes that because no modifications 

are anticipated to result from the 

designation of critical habitat, energyrelated impacts are not expected. 

Because no incremental impacts 

associated specifically with this 

rulemaking on the production, 

distribution, or use of energy are 

forecast, designation of critical habitat 

for Carex lutea is not expected to lead 

to any adverse outcomes (such as a 

reduction in electricity production or an 

increase in the cost of energy 

production or distribution). A Statement 

of Energy Effects is not required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(1) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private 

sector, and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

jeopardize the continued existence of 

the species, or destroy or adversely 

modify critical habitat under section 7. 

While non-Federal entities that receive 

Federal funding, assistance, or permits, 

or that otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) As discussed in the FEA of the 

designation of critical habitat for Carex 

lutea, we do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a federal mandate of $100 

million or greater in any year; that is, it 

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11100 Federal Register / Vol. 76, No. 40 / Tuesday, March 1, 2011 / Rules and Regulations 

is not a ‘‘significant regulatory action’’ 

under the Unfunded Mandates Reform 

Act. The lands we are designating as 

critical habitat are owned by private 

individuals, The Nature Conservancy, 

and the State of North Carolina 

(Division of Parks and Recreation, 

Department of Transportation and 

Wildlife Resources Commission). None 

of these government entities fit the 

definition of ‘‘small governmental 

jurisdiction.’’ The economic analysis 

also identified no cost resulting from the 

critical habitat designation. Because no 

incremental costs are anticipated, no 

small entities are expected to be affected 

by the rule. Therefore, a Small 

Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for Carex 

lutea in a takings implications 

assessment. Critical habitat designation 

does not affect landowner actions that 

do not require Federal funding or 

permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to permit actions that do require 

Federal funding or permits to go 

forward. The takings implications 

assessment concludes that this 

designation of critical habitat for Carex 

lutea does not pose significant takings 

implications for lands within or affected 

by the designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this rule does not have 

significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of this 

critical habitat designation with, 

appropriate State resource agencies in 

North Carolina. The designation of 

critical habitat for Carex lutea will 

impose no additional restrictions to 

those currently in place and, therefore, 

will have little incremental impact on 

State and local governments and their 

activities. The designation of critical 

habitat may have some benefit to these 

governments because the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the essential 

features themselves are specifically 

identified. While making this definition 

and identification does not alter where 

and what federally sponsored activities 

may occur, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) of the Act will be 

required. While non-Federal entities 

that receive Federal funding, assistance, 

or permits, or that otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that this rule 

does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We are designating critical 

habitat in accordance with the 

provisions of the Act. This final rule 

uses standard property descriptions and 

identifies the physical and biological 

features essential to the conservation of 

Carex lutea within the designated areas 

to assist the public in understanding the 

habitat needs of the species. 

Paperwork Reduction Act of 1995 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by National Environmental 

Policy Act (NEPA; 42 U.S.C. 4321 et 

seq.) in connection with designating 

critical habitat under the Act. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). This position was upheld by the 

U.S. Court of Appeals for the Ninth 

Circuit (Douglas County v. Babbitt, 48 

F.3d 1495 (9th Cir. 1995), cert. denied 

516 U.S. 1042 (1996)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

Government-to-Government Relations 

with Native American Tribal 

Governments (59 FR 22951), E.O. 13175, 

and the Department of the Interior’s 

manual at 512 DM 2, we readily 

acknowledge our responsibility to 

communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 ‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act,’’ we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

We have determined that there are no 

tribal lands occupied at the time of 

listing that contain the features essential 

for the conservation, and no tribal lands 

that are essential for the conservation, of 

Carex lutea. Therefore, we are not 

designating critical habitat for Carex 

lutea on tribal lands. 

References Cited 

A complete list of references cited in 

this rulemaking is available upon 

request from the Field Supervisor, 

Raleigh Fish and Wildlife Office (see 

ADDRESSES) or from http:// 

www.regulations.gov. 

Authors 

The primary authors of this package 

are the staff members of the Raleigh Fish 

and Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 

625, 100 Stat. 3500; unless otherwise noted. 

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Federal Register / Vol. 76, No. 40 / Tuesday, March 1, 2011 / Rules and Regulations 11101 

■ 2. In § 17.12(h), revise the entry for 

‘‘Carex lutea’’ under ‘‘Flowering Plants’’ 

in the List of Endangered and 

Threatened Plants to read as follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

Species 

Historic range Family Status When listed Critical 

habitat 

Special 

rules Scientific name Common name 

FLOWERING PLANTS

* * * * * * * 

Carex lutea .............. Golden sedge ......... U.S.A. (NC) ............ Cyperaceae ............ E 721 17.96(a) NA 

* * * * * * * 

■ 3. In § 17.96(a), amend paragraph (a) 

by adding an entry for ‘‘Carex lutea 

(golden sedge),’’ in alphabetical order 

under the family Cyperaceae, to read as 

follows: 

§ 17.96 Critical habitat—plants. 

(a) Flowering plants. 

* * * * * 

Family Cyperaceae: Carex lutea (golden 

sedge) 

(1) Critical habitat units are depicted 

for Onslow and Pender Counties, NC, on 

the maps below. 

(2) The primary constituent element 

of the physical and biological features 

essential to the conservation of Carex 

lutea is Pine Savanna (Very Wet Clay 

Variant) natural plant community or 

ecotones that contain: 

(i) Moist to completely saturated 

loamy fine sands, fine sands, fine sandy 

loams, and loamy sands soils with a pH 

between 5.5 and 7.2; 

(ii) Open to relatively open canopy 

that allows full to partial sunlight to 

penetrate to the herbaceous layer 

between savannas and hardwood 

forests; and 

(iii) Areas of bare soil immediately 

adjacent (within 12 inches (30 

centimeters)) to mature Carex lutea 

plants where seeds may fall and 

germinate or existing plants may expand 

in size. 

(3) Critical habitat does not include 

manmade structures existing on the 

effective date of this rule and not 

containing the primary constituent 

element, such as buildings, aqueducts, 

runways, roads, and other paved areas, 

and the land on which such structures 

are located. 

(4) Critical habitat map units. Data 

layers defining map units were created 

using a base of aerial photographs 

(USDA National Agriculture Imagery 

Program; NAIP 2008). Critical habitat 

units were then mapped using Universal 

Transverse Mercator (UTM) zone 18 

North American Datum (NAD) 1983 

coordinates. These coordinates establish 

the vertices and endpoints of the 

boundaries of the units and subunits. 

(5) Note: Index Map (Map 1) for 

critical habitat for Carex lutea in 

Onslow and Pender Counties, NC, 

follows: 

BILLING CODE 4310–55–P 

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11102 Federal Register / Vol. 76, No. 40 / Tuesday, March 1, 2011 / Rules and Regulations 

(6) Unit 1, subunits A, B, and C, for 

Carex lutea: Watkins Savanna, Pender 

County, NC. 

(i) Unit 1, subunits A, B, and C, for 

Carex lutea comprises 3.8 acres (ac) (1.5 

hectares (ha)) of somewhat overgrown 

Pine Savanna habitat. Unit 1 is located 

approximately 5.1 miles (mi) (8.2 

kilometers (km)) southeast of the 

intersection of NC 50 and NC 53, and all 

three subunits are on the north side of 

NC 50. 

(ii) Subunit 1A. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 732264, 99984; 

732203, 99954; 732184, 100016; 732234, 

100065; 732264, 99984. 

(iii) Subunit 1B. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 733143, 99288; 

733053, 99268; 733055, 99291; 733065, 

99309; 733055, 99320; 733048, 99344; 

733053, 99364; 733090, 99377; 733140, 

99370; 733143, 99288. 

(iv) Subunit 1C. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 732155, 99677; 

732128, 99667; 732093, 99716; 732109, 

99732; 732166, 99692; 732155, 99677. 

(v) Map of Unit 1 (Watkins Savanna) 

follows: 


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(7) Unit 2 for Carex lutea: Haws Run 

Mitigation Site, Onslow County, NC. 

(i) Unit 2 for Carex lutea comprises 

27.1 ac (11.0 ha) of Pine Savanna. Unit 

2 is located approximately 7.6 mi (12.2 

km) southeast of the intersection of NC 

50 and NC 53, on the south side of NC 

50. 

(ii) Unit 2. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 735078, 96823; 

735188, 96794; 735282, 96812; 735423, 

96489; 735296, 96437; 735329, 96364; 

735233, 96324; 735132, 96601; 735053, 

96564; 734996, 96686; 735049, 96740; 

735078, 96823. 

(iii) Map of Unit 2 (Haws Run 

Mitigation Site) follows: 


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(8) Unit 3 for Carex lutea: Maple Hill 

School Road Savanna, Pender County, 

NC. 

(i) Unit 3 for Carex lutea comprises 

27.7 ac (11.2 ha) of Pine Savanna. Unit 

3 is located approximately 3.7 mi (6.0 

km) southeast of the intersection of NC 

50 and NC 53, east of SR 1580 and north 

of NC 50. 

(ii) Unit 3. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 731509, 101826; 

731333, 101675; 731094, 101706; 

731187, 101962; 731239, 101964; 

731253, 101975; 731264, 102030; 

731435, 102129; 731509, 101826. 

(iii) Map of Unit 3 (Maple Hill School 

Road Savanna) follows: 


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(9) Unit 4, subunits A and B, for Carex 

lutea: Southwest Ridge Savanna, Pender 

County, NC. 

(i) Unit 4, subunits A and B, for Carex 

lutea comprises 3.3 ac (1.3 ha) of 

maintained power line on the edge of 

Pine Savanna. Unit 4 is located 

approximately 9.1 mi (14.7 km) 

southwest of the intersection of NC 50 

and NC 53. 

(ii) Subunit 4A. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 723852, 89908; 

723720, 89734; 723688, 89761; 723756, 

89851; 723820, 89935; 723852, 89908. 

(iii) Subunit 4B. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 724036, 90152; 

723975, 90075; 723946, 90104; 724004, 

90177; 724036, 90152. 

(iv) Map of Unit 4 (Southwest Ridge 

Savanna) follows: 


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(10) Unit 5, subunits A, B, C, D and 

E, for Carex lutea: Sandy Run Savannas, 

Onslow County, NC. 

(i) Unit 5, subunits A, B, C, D and E, 

for Carex lutea comprises 25.2 ac (10.2 

ha) of power line right-of-way, ecotone 

and Pine Savanna habitat. Unit 5 is 

located approximately 7.1 mi (11.4 km) 

southeast of the intersection of NC 50 

and NC 53. Subunit A is located in a 

power line corridor east of NC 50, and 

subunits B, C, D, and E are west of NC 

50. 

(ii) Subunit 5A. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 736771, 99308; 

736625, 99178; 736587, 99216; 736737, 

99350; 736771, 99308. 

(iii) Subunit 5B. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 735365, 98631; 

735349, 98617; 735348, 98651; 735379, 

98706; 735452, 98755; 735543, 98767; 

735619, 98723; 735502, 98683; 735365, 

98631. 

(iv) Subunit 5C. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 735711, 98665; 

735692, 98664; 735692, 98680; 735687, 

98688; 735664, 98688; 735650, 98706; 

735666, 98715; 735673, 98706; 735697, 

98704; 735711, 98689; 735711, 98670; 

735711, 98665. 


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(v) Subunit 5D. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 735817, 98757; 

735769, 98743; 735761, 98762; 735812, 

98776; 735817, 98757; and, 735756, 

98767; 735745, 98774; 735722, 98827; 

735720, 98863; 735761, 98907; 735787, 

98905; 735795, 98859; 735810, 98821; 

735864, 98838; 735899, 98854; 735928, 

98871; 735958, 98894; 735983, 98894; 

735990, 98820; 735850, 98795; 735756, 

98767. 

(vi) Subunit 5E. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 736501, 99084; 

736411, 99048; 736382, 99079; 736375, 

99137; 736318, 99202; 736292, 99251; 

736374, 99312; 736476, 99354; 736532, 

99252; 736610, 99159; 736559, 99115; 

736501, 99084. 

(vii) Map of Unit 5 (Sandy Run 

Savannas) follows: 

(11) Unit 6, subunits A, B, and C, for 

Carex lutea: The Neck Savanna, Pender 

County, NC. 

(i) Unit 6, subunits A, B, and C, for 

Carex lutea comprises 4.4 ac (1.8 ha) of 

power line right-of-way, Pine Savanna 

habitat. Unit 6 is located approximately 

5.3 mi (8.5 km) southeast of the 

intersection of NC 50 and NC 53. All 

three subunits are located south of NC 

50. Subunits 6A and 6B are located in 


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remnant Pine Savanna ecotones 

southeast of SR 1532, and Subunit 6C is 

located along a power line right-of-way 

adjacent to Williams Road. 

(ii) Subunit 6A. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 731077, 98383; 

731055, 98378; 731023, 98410; 731008, 

98465; 731036, 98516; 731078, 98542; 

731132, 98546; 731132, 98531; 731117, 

98465; 731114, 98417; 731112, 98391; 

731077, 98383. 

(iii) Subunit 6B. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 731177, 97874; 

731139, 97824; 731093, 97810; 731042, 

97830; 731047, 97843; 731094, 97828; 

731130, 97839; 731168, 97888; 731198, 

97895; 731200, 97879; 731177, 97874. 

(iv) Subunit 6C. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 731691, 98462; 

731678, 98456; 731668, 98491; 731680, 

98496; 731691, 98462. 

(v) Map of Unit 6 (The Neck Savanna) 

follows: 

(12) Unit 7, subunits A, B, and C, for 

Carex lutea: Shaken Creek Savanna, 

Pender County, NC. 

(i) Unit 7, subunits A, B, and C, for 

Carex lutea comprises 57.7 ac (23.4 ha) 

of Pine Savanna habitat. Unit 7 is 

located approximately 8.6 mi (13.8 km) 

southeast of the intersection of NC 50 

and NC 53. All three subunits are 


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located west of NC 50. Subunit 7A is 

immediately south side of Flo Road and 

east of Alligator Lake Road. Subunit 7B 

is immediately south of Flo Road and 

west of Alligator Lake Road. Subunit 7C 

is immediately south of Flo Road and 

approximately 1,800 feet (549 meters) 

west of Alligator Lake Road. 

(ii) Subunit 7A. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 734066, 92945; 

734015, 92941; 733993, 92959; 733995, 

92973; 733987, 92987; 733976, 93018; 

733972, 93074; 733967, 93130; 733970, 

93156; 733983, 93185; 734006, 93222; 

734060, 93204; 734057, 93140; 734080, 

93088; 734114, 93044; 734096, 92963; 

734066, 92945. 

(iii) Subunit 7B. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 733868, 92812; 

733817, 92804; 733727, 92937; 733704, 

93040; 733648, 93073; 733640, 93213; 

733823, 93232; 733964, 93244; 733997, 

93225; 733955, 93155; 733966, 93022; 

733985, 92968; 733959, 92949; 733926, 

92936; 733886, 92909; 733862, 92857; 

733868, 92812. 

(iv) Subunit 7C. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 733556, 93081; 

733560, 92976; 733522, 92933; 733449, 

92943; 733393, 92985; 733351, 93010; 

733327, 93048; 733280, 93055; 733217, 

93035; 733165, 92990; 733106, 92968; 

733059, 92992; 733030, 93034; 732976, 

93056; 732902, 93101; 732883, 93132; 

733202, 93163; 733318, 93178; 733549, 

93206; 733556, 93081. 

(v) Map of Unit 7 (Shaken Creek 

Savanna) follows: 


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11110 Federal Register / Vol. 76, No. 40 / Tuesday, March 1, 2011 / Rules and Regulations 

(13) Unit 8, subunits A, B, and C, for 

Carex lutea: McLean Savanna, Pender 

County, NC. 

(i) Unit 8, subunits A, B, and C, for 

Carex lutea comprises 52.6 ac (21.3 ha) 

of Pine Savanna and ecotone habitat. 

Unit 8 is located approximately 16.4 mi 

(26.4 km) south of the intersection of NC 

50 and NC 53 and approximately 2.1 mi 

(3.4 km) east of NC 210. 

(ii) Subunit 8A. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 722520, 77995; 

722417, 77935; 722283, 78037; 722146, 

78244; 722013, 78436; 722019, 78444; 

722433, 78542; 722540, 78390; 722492, 

78276; 722398, 78205; 722520, 77995. 

(iii) Subunit 8B. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 722780, 77840; 

722846, 77820; 722907, 77802; 722903, 

77787; 722842, 77806; 722774, 77825; 

722780, 77840; 722780, 77840; 722779, 

77841; 722780, 77840; 722780, 77840. 

(iv) Subunit 8C. Land bounded by the 

following UTM Zone 18, NAD 83 

coordinates (E,N): 723268, 78269; 

723209, 78309; 723166, 78305; 723179, 

78361; 723313, 78465; 723446, 78537; 

723408, 78370; 723395, 78307; 723335, 

78264; 723268, 78269. 

(v) Map of Unit 8 (McLean Savanna) 

follows: 


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Federal Register / Vol. 76, No. 40 / Tuesday, March 1, 2011 / Rules and Regulations 11111 

* * * * * 

Dated: February 10, 2011. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2011–4036 Filed 2–28–11; 8:45 am] 

BILLING CODE 4310–55–C 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 101126522–0640–02] 

RIN 0648–XZ89 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Gulf of Alaska; Final 

2011 and 2012 Harvest Specifications 

for Groundfish 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; closures. 

SUMMARY: NMFS announces final 2011 

and 2012 harvest specifications, 

apportionments, and Pacific halibut 

prohibited species catch limits for the 

groundfish fishery of the Gulf of Alaska 

(GOA). This action is necessary to 

establish harvest limits for groundfish 

during the 2011 and 2012 fishing years 

and to accomplish the goals and 

objectives of the Fishery Management 

Plan for Groundfish of the GOA. The 

intended effect of this action is to 

conserve and manage the groundfish 

resources in the GOA in accordance 

with the Magnuson-Stevens Fishery 

Conservation and Management Act. 

DATES: Effective at 1200 hrs, Alaska 

local time (A.l.t.), March 1, 2011, 

through 2400 hrs, A.l.t., December 31, 

2012. 

ADDRESSES: Electronic copies of the 

Final Alaska Groundfish Harvest 

Specifications Environmental Impact 

Statement (EIS), Record of Decision 

(ROD), Supplementary Information 

Report (SIR) to the EIS, and the Final 

Regulatory Flexibility Analysis (FRFA) 

prepared for this action are available 

from http://alaskafisheries.noaa.gov. 

The final 2010 Stock Assessment and 

Fishery Evaluation (SAFE) report for the 

groundfish resources of the GOA, dated 

November 2010, is available from the 

North Pacific Fishery Management 

Council (Council) at 605 West 4th 

Avenue, Suite 306, Anchorage, AK 

99510–2252, phone 907–271–2809, or 

from the Council’s Web site at http:// 

alaskafisheries.noaa.gov/npfmc. 

FOR FURTHER INFORMATION CONTACT: Tom 

Pearson, 907–481–1780, or Obren Davis, 

907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the GOA groundfish fisheries 

in the exclusive economic zone (EEZ) of 

the GOA under the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP). The Council prepared the 

FMP under the authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act), 16 U.S.C. 1801 

et seq. Regulations governing U.S. 

fisheries and implementing the FMP 

appear at 50 CFR parts 600, 679, and 

680. 

The FMP and its implementing 

regulations require NMFS, after 

consultation with the Council, to 

specify the total allowable catch (TAC) 

for each target species, the sum of which 

must be within the optimum yield (OY) 

range of 116,000 to 800,000 metric tons 

(mt). Section 679.20(c)(1) further 

requires NMFS to publish and solicit 

public comment on proposed annual 

TACs, halibut prohibited species catch 

(PSC) amounts, and seasonal allowances 

of pollock and inshore/offshore Pacific 

cod. Upon consideration of public 

comment received under § 679.20(c)(1), 

NMFS must publish notice of final 

harvest specifications for up to two 

fishing years as annual target TAC, per 

§ 679.20(c)(3)(ii). The final harvest 

specifications set forth in Tables 1 

through 25 of this document reflect the 

outcome of this process, as required at 

§ 679.20(c). 

The proposed 2011 and 2012 harvest 

specifications for groundfish of the GOA 

and Pacific halibut PSC allowances 

were published in the Federal Register 

on December 8, 2010 (75 FR 76352). 

Comments were invited and accepted 

through January 7, 2011. NMFS did not 

receive any comments on the proposed 

harvest specifications. In December 

2010, NMFS consulted with the Council 

regarding the 2011 and 2012 harvest 

specifications. After considering public 

testimony, as well as biological and 

economic data that were available at the 

Council’s December 2010 meeting, 

NMFS is implementing the final 2011 

and 2012 harvest specifications, as 

recommended by the Council. For 2011, 

the sum of the TAC amounts is 318,288 

mt. For 2012, the sum of the TAC 

amounts is 335,078 mt. 

Acceptable Biological Catch (ABC) and 

TAC Specifications 

In December 2010, the Council, its 

Advisory Panel (AP), and its Scientific 

and Statistical Committee (SSC), 

reviewed current biological and harvest 

information about the condition of 

groundfish stocks in the GOA. This 

information was compiled by the 

Council’s GOA Plan Team and was 

presented in the draft 2010 SAFE report 

for the GOA groundfish fisheries, dated 

November 2010 (see ADDRESSES). The 

SAFE report contains a review of the 

latest scientific analyses and estimates 

of each species’ biomass and other 

biological parameters, as well as 

summaries of the available information 

on the GOA ecosystem and the 

economic condition of the groundfish 

fisheries off Alaska. From these data and 

analyses, the Plan Team estimates an 

overfishing level (OFL) and ABC for 

each species or species group. The 2010 

SAFE report was made available for 

public review upon notification of the 

proposed harvest specifications. 

In previous years the largest changes 

from the proposed to the final harvest 

specifications have been based on the 

most recent NMFS stock surveys, which 

provide updated estimates of stock 

biomass and spatial distribution, and 

changes to the models used for making 

stock assessments. NMFS scientists 

presented updated and new survey 

results, changes to assessment models, 

and accompanying stock estimates at 

the November Plan Team meeting, and 

the SSC reviewed this information at the 

December 2010 Council meeting. In 

November 2010, the Plan Team 

considered updated stock assessments 

for pollock, Pacific cod, sablefish, 

sharks, squids, sculpins, and octopuses 

that are included in the final 2010 SAFE 

report. For the other groundfish stocks 

without recent surveys or other new 

scientific information, the final 2010 

SAFE report updates the final 2009 

SAFE assessments to include any other 

available, recent information, such as 

2010 catch information, which does not 

result in significant changes from the 

proposed 2011 and 2012 harvest 

specifications. Changes from the 

proposed to the final harvest 

specifications in 2011 for newly 

assessed groundfish stocks are 

discussed below. New stock surveys and 

assessments are scheduled for 2011 and 

will be considered at the Plan Team and 

Council meetings in 2011 for the 2012 

and 2013 groundfish fisheries. 

The final ABCs and TACs are based 

on the best available biological and 

socioeconomic information, including 

projected biomass trends, information 

on assumed distribution of stock 

biomass, and revised methods used to 

calculate stock biomass. The FMP 

specifies the formulas, or tiers, to be 

used to compute ABCs and OFLs. The 

formulas applicable to a particular stock 

or stock complex are determined by the 

level of reliable information available to 

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