[Federal Register Volume 65, Number 195 (Friday, October 6, 2000)]
[Proposed Rules]
[Pages 59798-59814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25671]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AG38


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Spruce-fir Moss Spider

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the spruce-fir moss spider (Microhexura 
montivaga) under the Endangered Species Act of 1973, as amended (Act). 
The proposed designation of critical habitat for the spruce-fir moss 
spider includes--(1) Areas at and above 1,646 meters (m) (5,400 feet 
(ft)) in elevation in the Great Smoky Mountains National Park (GSMNP) 
on and/or in the vicinity of Mount LeConte in Sevier County, Tennessee, 
and Mount Collins, Clingmans Dome, and Mount Buckley in Swain County, 
North Carolina, and Sevier County, Tennessee; (2) areas at and above 
1,646 m (5,400 ft) in elevation at Grandfather Mountain in Avery, 
Caldwell, and Watauga Counties, North Carolina; and (3) portions at and 
above 1,646 m (5,400 ft) in elevation at Roan Mountain, Avery and 
Mitchell Counties, North Carolina, and Carter County, Tennessee. All of 
the areas on or in the vicinity of Mount LeConte, Mount Collins, 
Clingmans Dome, and Mount Buckley that are proposed for critical 
habitat designation are within the boundaries of the GSMNP; all of the 
areas of Roan Mountain that are proposed for critical habitat 
designation are within the boundaries of the Pisgah National Forest in 
North Carolina and the Cherokee National Forest in Tennessee; and the 
areas of Grandfather Mountain that are proposed for critical habitat 
designation are privately owned.
    If this proposal is made final, section 7(a)(2) of the Act requires 
that Federal agencies ensure that actions they fund, authorize, or 
carry out are not likely to result in the destruction or adverse 
modification of critical habitat. The regulatory impact of critical 
habitat designation does not extend beyond those activities funded, 
permitted, or carried out by Federal agencies. State or private 
actions, with no Federal involvement, are not affected.
    Section 4 of the Act requires us to consider the economic and other 
relevant impacts of specifying any particular area as critical habitat. 
We solicit data and comments from the public on all aspects of this 
proposal, including data on the economic and other impacts of the 
designation. We may revise this proposal to incorporate or address 
comments and other information received during the comment period.

DATES: We will consider comments received by December 5, 2000. We must 
receive requests for public hearings, in writing, at the address shown 
in the ADDRESSES section by November 20, 2000.

ADDRESSES: If you wish to comment, you may submit your comments by any 
one of several methods:
    1. You may submit written comments and information to the State 
Supervisor, Asheville Field Office, U.S. Fish and Wildlife Service, 160 
Zillicoa Street, Asheville, North Carolina 28801.
    2. You may hand-deliver written comments to our Asheville Field 
Office, at the above address or fax your comments to 828/258-5330.
    3. You may send comments by electronic mail (e-mail) to 
<a href="/cdn-cgi/l/email-protection#670d080f093801150e03020b0b2701101449000811"><span class="__cf_email__" data-cfemail="62080d0a0c3d04100b06070e0e220415114c050d14">[email protected]</span></a>. For directions on how to submit electronic filing 
of comments, see the ``Public Comments Solicited'' section.
    Comments and materials received, as well as supporting 
documentation used in preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: John A. Fridell, Fish and Wildlife 
Biologist (see ADDRESSES section).

SUPPLEMENTARY INFORMATION:

Background

Taxonomy and Description

    The spruce-fir moss spider Microhexura montivaga) was originally 
described by Crosby and Bishop (1925) based on collections made in 1923 
from Mount Mitchell in western North Carolina, the highest point in 
eastern North America. Only a few specimens were taken, and little was 
known about the species until its ``rediscovery'' on Mount Mitchell, 
approximately 50 years later by Dr. Frederick Coyle (Western Carolina 
University) and Dr. William Shear (Hampden-Sydney College) (Coyle 
1981). The subsequent work (Coyle 1981, 1985, 1997, 1999; Harp 1991, 
1992) represents the bulk of what is presently known of the biology, 
habitat, behavior, range of, and threats to, the spider.
    The spruce-fir moss spider belongs to the genus Microhexura in the 
family Dipluridae. Diplurids are in the primitive spider suborder 
Mygalomorphae, which are often referred to as ``tarantulas'' due to the 
inclusion of the large, hairy spiders of the family Theraphosidae. Only 
two genera of Dipluridae, Euagrus and Microhexura, are found in the 
United States. Species in the genus Euagrus are medium to large spiders 
that build their silk sheets and funnels in rocky situations in the 
arid Southwest. The genus Microhexura is the northernmost 
representative of the family Dipluridae, and contains only two 
species--the spruce-fir moss spider (M. montivaga) and one with no 
common name (M. idahoana) (Chamberlin and Ivie). The two are 
distinguished by geographic distribution and by features of the male 
genitalia (Coyle 1981). Otherwise, they appear to be similar in both 
appearance and habits (Service 1998). Microhexura idahoana is found in 
conifer forests in the Pacific Northwest (Coyle 1981). The spruce-fir 
moss spider (M. montivaga) is known only from conifer forests in the 
mountains of North Carolina and Tennessee (Coyle 1981, 1997, 1999; Harp 
1991, 1992; Service 1995, 1998).
    The spruce-fir moss spider is the smallest of the mygalomorph 
spiders, with adults measuring only 2.5 to 3.8 millimeters (0.10 to 
0.15 inch) in length

[[Page 59799]]

(Coyle 1981, Service 1995). The species' coloration ranges from light 
brown to a darker reddish brown, and there are no markings on the 
abdomen (Harp 1992). The carapace (hard covering over the front part of 
the body) is generally yellowish brown (Harp 1992). The most reliable 
field identification characteristics for the species are chelicerae 
(fangs) that project forward well beyond the anterior (front) edge of 
the carapace, a pair of very long posterior spinnerets (organ for 
producing threads of silk), and the presence of a second pair of book 
lungs that appear as light patches posterior to the genital furrow 
(Harp 1992; Coyle, in litt. 1994; Service 1995).

Distribution, Habitat, and Life History

    Microhexura montivaga is known from only the highest mountain peaks 
(at and above 1,646 m (5,400 ft) in elevation) in the Southern 
Appalachian Mountains of North Carolina and Tennessee. It has been 
recorded from Mount Mitchell, Yancey County, North Carolina; 
Grandfather Mountain, Watauga, Avery, and Caldwell Counties, North 
Carolina; Mount Collins, Swain County, North Carolina; Clingmans Dome, 
Swain County, North Carolina; Roan Mountain, Avery and Mitchell 
Counties, North Carolina, and Carter County, Tennessee; Mount Buckley, 
Sevier County, Tennessee; and Mount LeConte, Sevier County, Tennessee.
    Recent and ongoing surveys funded by the National Park Service 
(NPS), U.S. Forest Service (USFS), and us indicate that reproducing 
populations of the spruce-fir moss spider still survive on Grandfather 
Mountain in North Carolina (Harp 1992; pers. observation 1995; Jane 
Thompson, The Nature Conservancy, pers. comm. 1997); Mount LeConte in 
Tennessee (Coyle 1997); and Mount Buckley (Coyle, pers. comm. 2000) and 
Roan Mountain in North Carolina and Tennessee (Coyle 1999). The Mount 
Mitchell population is believed to be extirpated (Harp 1992), and both 
the Mount Collins and Clingmans Dome populations, if still present, are 
extremely small, with only one spruce-fir moss spider having been found 
at each of these two sites in recent years (Harp 1991, 1992). The 
occurrences of the species on Mount LeConte, Mount Collins, Clingmans 
Dome, and Mount Buckley are all within the boundaries of the GSMNP, 
administered by the NPS. The sites supporting the species on Roan 
Mountain are within the boundaries of the Pisgah National Forest in 
North Carolina and the Cherokee National Forest in Tennessee, and are 
managed by the USFS. The area on Grandfather Mountain that still 
supports the spruce-fir moss spider is privately owned and is managed 
by The Nature Conservancy through an agreement with the landowner.
    Recent work by Coyle (1997) indicates that Mount LeConte currently 
supports the healthiest of the surviving populations of the spruce-fir 
moss spider. In his study of the species on Mount LeConte, Coyle (1997) 
recorded the species from four small, separate areas of rock outcrop 
(approximately 0.10 hectare [0.25 acre], 0.15 hectare [0.38 acre], 0.25 
hectare [0.63 acre], and 0.50 hectare [1.25 acres] in size) and 
estimated that the largest three of these areas support a population of 
approximately 5,000 individuals. He estimated that the 0.25-hectare 
site provided a total of approximately 12 square meters (m\2\) (roughly 
133 square feet) of suitable microhabitat, and the 0.15-hectare site 
provided approximately 7 m\2\ (78 square feet) of suitable microhabitat 
for the spruce-fir moss spider. Measurements of likely suitable 
microhabitat have not yet been made at the other two sites on Mount 
LeConte.
    The typical microhabitat of the spruce-fir moss spider appears to 
be associated with moderately thick and humid, but well-drained, moss 
and liverwort mats growing in sheltered spots on surfaces of rock 
outcrops and boulders in mature high-elevation forests dominated by 
Fraser fir (Abies fraseri) (Coyle 1981, 1997, 1999; Harp 1991, 1992; 
Service 1998). The portions of the moss mats supporting the spruce-fir 
moss spider are generally from 1 to 4 centimeters (cm) thick (roughly 
0.5 to 1.25 inches) and are well-shaded (Coyle 1981, 1997, 1999; Harp 
1991, 1992; Service 1998). They cannot be too dry, because the spider 
is quite sensitive to desiccation (drying out), nor can they be too wet 
(Coyle 1997, 1998; Harp 1991, 1992). The humidity levels required by 
the spruce-fir moss spider have yet to be determined. In a study of the 
spruce-fir moss spider on the Roan Mountain, Coyle (1999) reported that 
the moss/liverwort mats in which spruce-fir moss spiders were found 
were--(1) sheltered from the sun and the rain; (2) typically not far 
above either the ground or a horizontal ledge with accumulated soil; 
(3) included a thin layer of humid soil and/or humus (decayed 
vegetation and other organic material) between the moss and rock 
surface; (4) moderately thick (1 to 3 centimeters (0.5 to 1 inch); and 
(5) humid but not wet. He reported that, clearly, most rock outcrop 
surfaces, even those covered by bryophytes (mosses, liverworts, etc.), 
do not meet these microhabitat requirements and do not support the 
spruce-fir moss spider.
    Population and microhabitat estimates are not available for the 
Grandfather Mountain, Mount Buckley, or Roan Mountain populations of 
the spruce-fir moss spider. However, existing data indicate that the 
Grandfather Mountain population is restricted to small patches of 
suitable microhabitat occurring on a single rock outcrop and a nearby 
boulder (Harp 1992; pers. observation 1995). The Mount Buckley 
population is restricted to scattered patches of suitable microhabitat 
on separate rock outcrop sites within an area roughly 0.20 hectare (0.5 
acre) in size. On Roan Mountain, Coyle (1999) recorded scattered 
occurrences of the spruce-fir moss spider at 12 small, separate rock 
outcrop sites but found more than two spiders living in the same 
discrete patch of moss/liverwort on only three occasions. He found four 
spiders in an 800 square centimeters (sq cm) (approximately 1.0 square 
feet (sq ft)) patch of liverwort at one site, five spiders in a 900 sq 
cm (1.2 sq ft) patch of moss at another site, and four spiders in a 900 
sq cm (1.2 sq ft) patch of moss at the third site. He reported that, at 
none of these three sites, nor at any other sites on Roan Mountain 
where he found the spider, were they able to find additional spiders 
with ease and that the spruce-fir moss spider population densities on 
Roan Mountain were clearly not as high as those observed at some of the 
sites on Mount LeConte. As stated above, individual spruce-fir moss 
spiders (one each) have been observed in recent years on Mount Collins 
and on Clingmans Dome, indicating extremely low population levels. 
Coyle (in litt. 1991) reported that the spruce-fir moss spider was 
common at a site on Clingmans Dome as late as 1983 but was extremely 
rare by 1988, which he suspected was largely due to deterioration of 
the forest canopy at the site.
    The moss species associated with occurrences of the spruce-fir moss 
spider have been identified by David K. Smith, Botany Department, 
University of Tennessee at Knoxville, as Polytrichum pallidesetum Funck 
(Harp 1991, 1992), Dicranodontium denudatum (Brid.) E. G. Britt ex 
Williams (Harp 1992; Coyle 1997, 1999), and D. asperulum (Mitt.) Broth. 
(Coyle 1997, 1999). In addition, Coyle (1999) reported finding the 
spruce-fir moss spider on two occasions in liverwort mats (species was 
not identified) on rock outcrops. However, on both Mount LeConte and 
Roan Mountain, Coyle (1997, 1999 respectively) found the spruce-fir 
moss spider most often in

[[Page 59800]]

association with mosses in the genus Dicranodontium. Though Harp (1991, 
1992) reported finding the spruce-fir moss spider on Mount LeConte in 
mosses identified as Polytrichum pallidesetum, Coyle was unable to find 
the spider on either Mount LeConte or Roan Mountain in mosses in this 
genus. The association between the spruce-fir moss spider and mosses in 
the genus Dicranodontium is noteworthy, because mosses in this genus 
are much less common than many other rock surface mosses (Coyle 1999).
    While humid, well-drained moss/liverwort mats on inclined, well-
shaded surfaces of rock outcrops and boulders appear to be the optimal 
microhabitat for the spruce-fir moss spider, it has also, on occasion, 
been found: (1) Under moss and litter mats at the base of rock outcrops 
(Coyle 1981); (2) under moss on loose rock at the base of rock 
outcrops; (3) in litter/humus under flat rocks lying on the ground in 
well-shaded situations in the vicinity of rock outcrops; and (4) on 
well-drained, well-shaded ground in or under needle and/or heath litter 
and moss in the vicinity of rock outcrops (Coyle 1997).
    The species has also rarely been found in moss mats on tree trunks 
(Coyle 1981) and moss mats on logs (Harp 1992), though Coyle has been 
unable to find the species in either of these habitat types in his 
recent surveys for the species (Coyle, 1997, 1999; pers. comm. 2000).
    An ongoing study of spiders of the GSMNP by Coyle and recent 
surveys of the spruce-fir moss spider on Mount LeConte (Coyle 1997) and 
Roan Mountain (Coyle 1999) support earlier findings (Coyle 1981; Harp 
1991, 1992) that the microhabitat of the spruce-fir moss spider is 
virtually restricted to certain areas of rock outcrops and boulders in 
Fraser fir and/or fir-dominated spruce-fir forests. The Fraser fir is 
the only species of fir native to the Southeastern United States (Burns 
and Honkala 1990). In his study of the population of the spruce-fir 
moss spider on Mount LeConte, Coyle (1997) reported finding the species 
``only in stands containing many old (well over 25 years of age) fir 
trees and in areas where patches of fir containing old fir trees 
interface with heath communities.'' In both situations he found the 
species only on or in the vicinity of rock outcrops. In his work on 
Roan Mountain, Coyle (1999) found the species only on rock outcrops in 
fir forests or fir-dominated areas of spruce-fir forests. Searches for 
the spruce-fir moss spider in other habitat types have failed to locate 
occurrences of the species (Coyle, in litt., 1991; Coyle 1997, 1999).
    Coyle (1981, 1997) describes the webs of the spruce-fir moss spider 
as silk tubes sandwiched between the interface of the moss mat and 
boulder surface. The tubes are thin-walled and are typically broad and 
flattened, with short side branches. Some of the tubes occasionally 
extend into crevices in the rock or litter (Coyle 1997) or the 
vegetative interior of the moss mat (Harp 1991, 1992).
    The spruce-fir moss spider has not been observed taking prey in the 
wild, nor is there any record of prey having been found in spruce-fir 
moss spider webs. The abundant springtails (small wingless insects in 
the order Collembola) found in moss mats with the spiders provide the 
most likely source of food. The spiders have been observed to take 
springtails in captivity (David Hodge, Louisville Zoological Park, 
pers. comm. 1992).
    Mating behavior has been described in detail (Coyle 1985). Females 
of the spruce-fir moss spider are known to lay eggs in June (Coyle 
1981). The egg sac of the species is thin-walled, nearly transparent, 
and generally contains only 7 to 9 eggs (Coyle 1981). The female 
remains with the egg sac and, when disturbed, will carry the sac with 
her fangs. Coyle (1997) hypothesized that the ability of the female to 
move the egg sac may be useful not only in protecting the eggs from 
predators but also in repositioning the egg sac to protect it from 
microhabitat changes within the web. Development and evaporative water 
loss by early instar (a stage between molts) spiderlings within the egg 
sac are likely dependent on temperature and humidity levels. The 
spiderlings emerge during September (Coyle 1981). It has been estimated 
that it may take at least two to three years for spruce-fir moss 
spiders to reach maturity (Coyle 1985). The life span of the spruce-fir 
moss spider is currently unknown. Many species of spiders live for only 
one season. But, like other ``tarantulas,'' spruce-fir moss spiders 
molt (shed their skin) continuously through life, which means they can 
keep growing and can live for several years.
    Modes of dispersal of spiderlings from the parental moss mats are 
unknown. Ballooning is a possibility since males of M. idahoana have 
been collected as ``windblown fallout'' on snow fields on Mt. Rainier 
(Coyle 1981). Ballooning spiders use a sheet of silk played out into a 
wind current as a kite to carry them into the air. Ballooning spruce-
fir moss spiders have not been collected. If they do balloon, they 
would be capable of an effective mode of dispersal over long distances. 
Even short-range dispersal between moss mats has not been documented 
for this species. Pit fall trap and Berlese funnel sampling done in the 
area of the Mount LeConte population did not yield any specimens of the 
spruce-fir moss spider (Lambden et al. 1994).
    Possible predators and competitors of the spruce-fir moss spider 
include pseudoscorpions, centipedes, carabid beetles, and other 
spiders. A number of other species of spiders are commonly found in the 
same moss as the spruce-fir moss spider (Service 1998).

Threats

    The majority of the high-elevation spruce-fir forests of the 
Southeast have suffered extensive changes and declines in size and/or 
vigor during the past century, likely as a result of a number of 
factors, including storm damage, site deterioration due to the logging 
and burning practices of early 1900s (Peart et al. 1992), atmospheric 
pollution (Johnson et al. 1992), exposure shock (Nicholas et al. 1992), 
climate changes, and other factors not yet fully understood. However, 
the primary threat to, and reason for, the recent decline of the 
spruce-fir moss spider at all of the sites from which it has been 
recorded appears to be associated with the loss of suitable moss 
habitat, due primarily to the loss of mature Fraser firs (Coyle, in 
litt., 1991, 1999; Harp 1991, 1992; Service 1998). The spruce-fir moss 
spider appears to be very sensitive to desiccation and requires 
situations of high and constant humidity. The loss of mature Fraser 
firs, the dominate canopy species in the forest stands where the spider 
has been found, leading to increased light and temperature and 
decreased moisture on the forest floor (resulting in drying out of the 
moss mats), appears to be the major cause for the loss of the spruce-
fir moss spider on Mount Mitchell and the recent decline of the Mount 
Collins, Clingmans Dome, and a portion of the Mount LeConte populations 
(Harp 1991, 1992). It is also likely the major factor limiting the 
species' distribution on Roan Mountain, Grandfather Mountain, and Mount 
Buckley. Mature Fraser firs on all of these mountains have suffered 
extensive mortality in the last few decades, primarily due to 
infestation by the balsam wooly adelgid (Adelges picea (Ratzeburg) 
(Homoptera, Adelgidae)). The balsam wooly adelgid is a nonnative insect 
pest believed to have been introduced into the Northeastern United 
States from Europe around 1900 (Kotinsky 1916, Eagar 1984). The adelgid 
was first detected in North Carolina on Mount Mitchell (the

[[Page 59801]]

type locality for the spruce-fir moss spider) in 1957 (Speers 1958), 
though it was likely established at that site as early 1940. From Mount 
Mitchell, the adelgid spread to the Fraser fir stands throughout the 
Southern Appalachians (Eagar 1984). All ages of fir trees are attacked 
by the adelgid, but damage is generally minimal until the trees reach 
maturity, at around 30 years of age (Hoffard et al. 1990). Most mature 
Fraser firs are easily killed by the adelgid (Amman and Speers 1965), 
with death occurring within 2 to 7 years of the initial infestation 
(Eagar 1984). The death of the fir trees and the resultant opening of 
the forest canopy causes the remaining trees to be more susceptible to 
wind and other storm damage. The adelgid is transported and spread 
primarily by the wind but may also be spread by contaminated nursery 
stock; on the fur or feathers of animals; or by humans on contaminated 
clothes, equipment, or vehicles (Eagar 1984). All efforts to control 
the spread of the adelgid have failed thus far.
    All existing data (Coyle 1981, 1997, 1999; Harp 1991, 1992) 
indicate that suitable habitat for the spruce-fir moss spider is 
extremely limited and restricted to small areas of rock outcrops 
occurring in forest stands dominated by fir trees, providing the 
shelter and organic substrata required by the spider. This restricted 
range of each of the surviving populations of the spruce-fir moss 
spider also makes it extremely vulnerable to extirpation from a single 
event or activity, such as a severe storm, wildfire, land-clearing or 
timber operation, pesticide/herbicide application, etc. In addition, 
the spider and the moss mats it inhabits are very fragile and easily 
destroyed by human trampling or other disturbance. Many of the high-
elevation areas where the spider occurs are frequented by tens of 
thousands of visitors each year. Coyle (1999) suggested that boulder 
climbing by visitors may have been one of the factors contributing to 
the scarcity of suitable moss habitat for the spider in areas on Roan 
Mountain. Because of their small size, disturbance of the moss mats or 
damage to the surrounding vegetation shading the mats could result in 
the extirpation of entire spruce-fir moss spider populations and/or 
population fragments.

Previous Federal Actions

    On December 31, 1992, we notified (in writing) appropriate Federal, 
State, and local government agencies, landowners, and individuals 
knowledgeable about this or similar species that a status review was 
being conducted and that the species might be proposed for Federal 
listing. We received ten written comments. The NPS, the North Carolina 
Division of Parks and Recreation, and three private individuals 
(including the owner of the site containing the Avery/Caldwell County, 
North Carolina, population) expressed strong support for the potential 
listing of the spruce-fir moss spider as an endangered species. The 
U.S. Soil Conservation Service, Tennessee Wildlife Resources Agency, 
Tennessee Department of Environment and Conservation, Tennessee Valley 
Authority, and the North Carolina Department of Agriculture stated that 
they had no new or additional information on the species or threats to 
its continued existence. We received no comments opposing the potential 
listing of the spruce-fir moss spider.
    On August 30, 1993, we classified the spruce-fir moss spider as a 
category 1 candidate based on the results of status surveys, funded by 
the NPS and us, documenting significant habitat loss and increased 
threats to the species throughout its range (Harp 1991, 1992). At that 
time, category 1 represented those species for which we had substantial 
information on biological vulnerability and threats to support 
proposals to list them as endangered or threatened species.
    On January 27, 1994, we published in the Federal Register (59 FR 
3825) a proposal to list the spruce-fir moss spider as an endangered 
species without designating critical habitat. The proposal provided 
information on the species' range, biology, status, and threats to its 
continued existence and a proposed determination that designation of 
critical habitat was not prudent for the species because such 
designation would not be beneficial and could further threaten the 
spruce-fir moss spider. Through associated notifications, we invited 
comments on the proposal and factual reports or information that might 
contribute to the development of a final rule. We contacted and 
requested comments from appropriate Federal and State agencies, county 
governments, scientific organizations, individuals knowledgeable about 
the species or its habitat, and other interested parties. We published 
a legal notice, which invited general public comment, in the following 
newspapers: The Avery Journal, Newland, North Carolina, February 10, 
1994; the News-Topic, Lenoir, North Carolina, February 10, 1994; the 
Watauga Democrat, Boone, North Carolina, February 16, 1994; the Smoky 
Mountain Times, Bryson City, North Carolina, February 10, 1994; and the 
Mountain Press, Sevierville, Tennessee, February 11, 1994. We received 
ten written comments. Six of them expressed strong support for the 
findings presented in the proposed rule and listing of the species as 
proposed; three either expressed concurrence with the data presented in 
the proposed rule and/or provided additional information but expressed 
neither support for nor opposition to the listing; and one comment 
opposed the listing, stating that the ``scientific community, and the 
Service in particular, needs to recognize that extinction has always 
been a continuing process and will continue to be so.''
    Following our review of all the comments and information received 
throughout the listing process, by final rule (60 FR 6968) dated 
February 6, 1995, we listed the spruce-fir moss spider as endangered. 
We addressed all the comments received throughout the listing process 
and/or incorporated changes into the final rule as appropriate. That 
decision included a determination that the designation of critical 
habitat was not prudent for the spruce-fir moss spider because, after a 
review of all the available information, we determined that such 
designation would not be beneficial to the species and that designation 
of critical habitat could further threaten the spider (see ``Prudency 
Determination'' section).
    On June 30, 1999, the Southern Appalachian Biodiversity Project and 
the Foundation for Global Sustainability filed a lawsuit in United 
States District Court for the District of Columbia against the Service, 
the Director of the Service, and the Secretary of the Department of the 
Interior, challenging the not prudent critical habitat determinations 
for four species in North Carolina--the spruce-fir moss spider, 
Appalachian elktoe (Alasmidonta raveneliana), Carolina heelsplitter 
(Lasmigona decorata), and rock gnome lichen (Gymnoderma lineare). On 
February 29, 2000, the U.S. Department of Justice entered into a 
settlement agreement with the plaintiffs in which we agreed to 
reexamine our prudency determination and submit to the Federal 
Register, by October 1, 2000, if appropriate, withdrawal of the 
existing not prudent determination, together with a new proposed 
critical habitat determination. If, upon consideration of all available 
information and comments, we determine that designating critical 
habitat is not prudent for the spruce-fir moss spider, we have agreed 
to submit a notice of that finding to the Federal Register by April 1, 
2001. If we determine that designation of critical habitat is prudent 
for the spruce-fir moss spider, we have agreed to send a

[[Page 59802]]

final rule of this finding to the Federal Register by July 1, 2001.
    This proposal is the product of our reexamination of our prudency 
determination for the spruce-fir moss spider and reflects our 
interpretation of the recent judicial opinions on critical habitat 
designation and the standards placed on us for making a ``not prudent'' 
determination. If additional information becomes available on the 
species' biology and distribution and threats to the species, we may 
reevaluate this proposal to designate critical habitat, including 
proposing additional critical habitat, proposing the deletion or 
boundary refinement of existing proposed critical habitat, or 
withdrawing our proposal to designate critical habitat.

Prudency Determination

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is determined to be 
endangered or threatened. Regulations under 50 CFR 424.12(a)(1) state 
that designation of critical habitat is not prudent when one or both of 
the following situations exist--(1) The species is threatened by taking 
or other activity and the identification of critical habitat can be 
expected to increase the degree of threat to the species or (2) such 
designation of critical habitat would not be beneficial to the species. 
In our February 6, 1995, final rule, we determined that both situations 
applied to the spruce-fir moss spider.
    A critical habitat designation has no effect on situations where a 
Federal agency is not involved. The regulations that provide protection 
for critical habitat come into play through section 7 of the Act. 
Requirements under section 7 of the Act apply only to Federal actions 
and activities. They require Federal agencies to ensure, in 
consultation with us, that activities they fund, authorize, or carry 
out are not likely to jeopardize the continued existence of listed 
species or result in the destruction or adverse modification of 
designated critical habitat. Regulations for the implementation of 
section 7 of the Act (50 CFR 402.2) provide for both a ``jeopardy'' 
standard and an ``adverse modification or destruction of critical 
habitat'' standard. 50 CFR 402.2 defines ``jeopardize the continued 
existence of'' as meaning to engage in an action that would reasonably 
be expected, directly or indirectly, to appreciably reduce the 
likelihood of both the ``survival and recovery'' of a listed species in 
the wild by reducing the reproduction, numbers, or distribution of that 
species. ``Destruction or adverse modification'' is defined as a direct 
or indirect alteration that appreciably diminishes the value of 
critical habitat for both the ``survival and recovery'' of a listed 
species. These regulations require that the adverse modification or 
destruction of critical habitat analysis, like the jeopardy analysis, 
consider the detrimental effects of a proposed Federal action to both 
the survival and recovery of the listed species. Because of the 
extremely restricted range and limited amount of suitable habitat 
available to the spruce-fir moss spider, we determined in the February 
6, 1995, final rule that any action that would likely result in the 
destruction or adverse modification of the species' habitat would also 
likely jeopardize the species' continued existence. Since Federal 
actions resulting in jeopardy are also prohibited by section 7, we 
determined that designation of critical habitat would not provide any 
additional protection benefitting the species beyond that provided by 
the jeopardy standard.
    Further, although we had no documented evidence of collecting or 
other human disturbance (prior to publication of the proposed rule to 
list this tiny tarantula as endangered, the species was largely unknown 
to the general public), we were concerned that the rarity and 
uniqueness of this spider could generate interest in the species. The 
low numbers, slow reproductive rate, and restricted range of the 
spruce-fir moss spider make it unlikely that its populations could 
withstand even moderate collecting pressure (adapted from Harp 1992) or 
the habitat disturbance that would result from people visiting its 
habitat. Accordingly, in the 1995 final rule, we determined that the 
designation of critical habitat, and the associated publication of maps 
and descriptions of critical habitat, could increase the vulnerability 
of the species to collecting or other disturbance.
    However, in the past few years, several of our determinations that 
the designation of critical habitat would not be prudent have been 
overturned by court decisions. For instance, in Conservation Council 
for Hawaii v. Babbitt, the United States District Court for the 
District of Hawaii ruled that the Service could not rely on the 
``increased threat'' rationale for a ``not prudent'' determination 
without specific evidence of the threat to the species at issue 2 F. 
Supp. 2d 1280 (D. Hawaii 1998)). And in Natural Resources Defense 
Council v. U.S. Department of the Interior, the United States Court of 
Appeals for the Ninth Circuit ruled that the Service must balance, in 
order to invoke the ``increased threat rationale,'' the threat against 
the benefit to the species of designating critical habitat 113 F. 3d 
1121, 1125 (9th Cir. 1997).
    We continue to be concerned that the spruce-fir moss spider is 
extremely vulnerable to unrestricted collection or disturbance of its 
habitat and that these threats might be increased by the publication of 
critical habitat maps and further dissemination of location and habitat 
information. However, at this time we do not have specific evidence of 
taking, collection, trade, or other unauthorized human disturbance of 
the spruce-fir moss spider or any similarly situated species. 
Furthermore, we acknowledge that some educational or informational 
benefit may derive from designation. Consequently, we hereby propose to 
withdraw our previous determination that the identification of critical 
habitat can be expected to increase the degree of threat to the 
species.
    Courts also have ruled that, in the absence of a finding that the 
designation of critical habitat would increase threats to a species, 
the existence of another type of protection besides designation, even 
if it offers potentially greater protection to the species, does not 
justify a not prudent finding Conservation Council for Hawaii v. 
Babbitt 2 F. Supp. 2d 1280. Accordingly, we withdraw our previous 
determination that designation of critical habitat will not benefit the 
spruce-fir moss spider. It is true that we are already working with the 
NPS, USFS, the owner of Grandfather Mountain, and others in carrying 
out research and conservation activities for the spruce-fir moss 
spider, and these entities are fully aware of the species' location and 
habitat requirements, as currently known. However, as stated above, 
some educational or informational benefit may result from designating 
critical habitat. Therefore, we propose that designation of critical 
habitat is prudent for the spruce-fir moss spider.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as (i) 
the specific areas within the geographic area occupied by the species 
on which are found those physical or biological features (I) essential 
to the conservation of the species and (II) that may require special 
management considerations or protection; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination that such areas

[[Page 59803]]

are essential for the conservation of the species. Areas outside the 
geographic area currently occupied by the species shall be designated 
as critical habitat only when a designation limited to its present 
range would be inadequate to ensure the conservation of the species. 
``Conservation'' is defined in section 3(3) of the Act as the use of 
all methods and procedures necessary to bring endangered or threatened 
species to the point at which listing under the Act is no longer 
necessary. Regulations (50 CFR 424.02 (j)) define ``special management 
considerations or protection'' to mean any methods or procedures useful 
in protecting physical and biological features of the environment for 
the conservation of listed species.
    Section 4(b)(2) of the Act requires that we base critical habitat 
designations on the best scientific and commercial data available, 
after taking into consideration the economic impact, and any other 
relevant impact, of specifying any particular area as critical habitat. 
We may exclude areas from critical habitat designation when the 
benefits of excluding those areas outweigh the benefits of including 
the areas within the critical habitat, provided the exclusion will not 
result in the extinction of the species.

Methods

    The proposed areas of critical habitat described below constitute 
our best assessment of the areas needed for the conservation and 
recovery of the spruce-fir moss spider in accordance with the goals 
outlined in our recovery plan for the species (Service 1998), and are 
based on the best scientific and commercial information currently 
available to us concerning the species' known present and historic 
range, habitat, biology, and threats. All of the areas we propose to 
designate as critical habitat are within what we believe to be the 
geographic area occupied by the spruce-fir moss spider and include all 
known surviving occurrences of the species. Despite extensive surveys 
and ongoing research, we currently are not aware of any areas outside 
the geographical area occupied by the spruce-fir moss spider that are 
essential for the conservation of the spider. To the extent feasible, 
we will continue, with the assistance of other Federal, State, and 
private researchers, to conduct surveys and research on the species and 
its habitat. If new information becomes available that indicates that 
other areas within the spruce-fir moss spider's historic range that are 
essential to the conservation of the species, we will revise the 
proposed critical habitat or designated critical habitat for the 
spruce-fir moss spider accordingly.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and the 
regulations at 50 CFR 424.12, in determining which areas to propose as 
critical habitat, we are required to base critical habitat 
determinations on the best scientific and commercial data available and 
to consider those physical and biological features (primary constituent 
elements) that are essential to the conservation of the species and 
that may require special management considerations and protection. Such 
requirements include, but are not limited to: space for individual and 
population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction and rearing of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.
    When considering areas for designation as critical habitat, we are 
required to focus on the principal biological or physical constituent 
elements within the defined area that are essential to the conservation 
of the species (50 CFR 424.12(b)). Although additional information is 
needed to better define the habitat requirements of the species, 
particularly the microhabitat requirements, based on the best available 
information, the primary constituent elements essential for the 
conservation of the spruce-fir moss spider are:
    1. Fraser fir or fir-dominated spruce-fir forests at and above 
1,646 m (5,400 ft) in elevation.
    2. Moderately thick and humid, but not wet, moss (species in the 
genus Dicranodontium, and possibly Polytrichum) and/or liverwort mats 
on rock surfaces that are adequately sheltered from the sun and rain 
(by overhang and aspect) and include a thin layer of humid soil and/or 
humus between the moss and rock surface.
    As a result of the massive Fraser fir die-offs and associated loss 
of moss habitat for the spruce-fir moss spider, the remaining areas of 
suitable habitat for the spider exist only in scattered patches, 
ranging from a single rock outcrop to scattered rock outcrop sites (see 
``Background'' section). Due to the patchiness and small size of the 
areas providing suitable habitat for the spruce-fir moss spider, we 
have elected to propose an inclusive area on each of the mountain peaks 
still providing habitat for the species as critical habitat rather than 
attempt to identify each individual site separately.
    Regulations at 50 CFR 424.12(c) require that we define the specific 
limits of critical habitat by using reference points and lines as found 
on standard topographic maps of the area(s). Because of the small size 
and limited number of suitable habitat patches and for ease of 
reference, we did not map critical habitat in sufficient detail to 
exclude lands unlikely to contain all of the primary constituent 
elements essential for conservation of the spruce-fir moss spider. 
Consequently, the areas we are proposing as critical habitat include 
areas of unsuitable habitat, for example, fir or fir-dominated forests 
without rock outcrops, rock outcrops without suitable moss or liverwort 
mats, spruce or hardwood forests with or without rock outcrops, areas 
dominated by early herbaceous vegetation, and other habitat types that 
do not provide the habitat or microhabitat required by the spider. 
Federal actions limited to these other habitat types, therefore, would 
not trigger a section 7 consultation. Please note, however, that any 
activity authorized, funded, or carried out by a Federal agency that 
has a potential to affect the constituent elements of designated 
critical habitat or to destroy or adversely modify areas proposed as 
critical habitat, regardless of the activity's location in relation to 
designated or proposed critical habitat, will require a consultation or 
conference, respectively, with us, as required under the provisions of 
section 7 of the Act (see ``Effects of Critical Habitat Designation'' 
section).

Proposed Critical Habitat Designation

    Proposed critical habitat includes spruce-fir moss spider habitat 
throughout the species' existing range in the United States. Lands 
proposed are under private and Federal ownership. Lands proposed as 
critical habitat have been divided into four critical habitat units. 
Areas proposed for designation as critical habitat and their ownership 
are described below.

Unit 1: Swain County, North Carolina, and Sevier County, Tennessee

    Unit 1 encompasses all portions of the GSMNP bounded to the north 
and to the south of the North Carolina/Tennessee State line (State 
line) by the 1,646-m (5,400-ft) contour, from the intersection of the 
1,646-m (5,400-ft) contour with the State line, south of Mingus Lead, 
Tennessee, southwest and then west to the intersection of the 1,646-m 
(5,400-ft) contour with the State line, east of The

[[Page 59804]]

Narrows and west of Jenkins Knob, North Carolina, and Tennessee.

Unit 2: Sevier County, Tennessee

    Unit 2 encompasses all portions of the GSMNP at and above the 
1,646-m (5,400-ft) contour, bounded on the southwest side by the North 
Carolina/Tennessee State line from the intersection of the State line 
with the 1,646-m (5,400-ft) contour near Dry Sluice Gap, southeast to 
the intersection of the State line with the 1,646-m (5,400-ft) contour 
at the head of Minnie Ball Branch, North Carolina, northwest of 
Newfound Gap, North Carolina, and Tennessee.

Unit 3: Avery and Mitchell Counties, North Carolina, and Carter County, 
Tennessee

    Unit 3 encompasses all portions of the Pisgah National Forest in 
North Carolina and the Cherokee National Forest in Tennessee, bounded 
to the north and to the south of the North Carolina/Tennessee State 
line by the 1,646-m (5,400-ft) contour, from the intersection of the 
1,646-m (5,400-ft) contour with the State line north of Elk Hollow 
Branch, Avery County, North Carolina, and southwest of Yellow Mountain, 
Carter County, Tennessee, west to the 1,646-m (5,400-ft) contour at 
Eagle Cliff, Mitchell County, North Carolina.
    Unit 4: Avery, Caldwell, and Watauga Counties, North Carolina.
    Unit 4 encompasses all areas of privately owned Grandfather 
Mountain at and above the 1,646-m (5,400-ft) contour.

Effects of Critical Habitat Designation

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

[[Page 59805]]

will constitute adverse modification of critical habitat, may be 
addressed to the U.S. Fish and Wildlife Service, Asheville Field 
Office, 160 Zillicoa Street, Asheville, North Carolina 28801.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
as critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. However, we cannot exclude areas from critical habitat when 
the exclusion will result in the extinction of the species. We will 
conduct an analysis of the economic impacts of designating these areas 
identified above as critical habitat prior to a final determination. 
When a draft of the economic analysis is completed, we will announce 
its availability with a notice in the Federal Register, and we will 
open a 30-day comment period at that time.

Secretarial Order 3206: American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities and the Endangered Species Act

    In accordance with the Presidential Memorandum of April 29, 1994, 
we are required to assess the effects of critical habitat designations 
on tribal land and tribal trust resources. We did not propose any 
tribal land for designation as critical habitat, and we do not 
anticipate any effects on tribal trust resources if this proposal is 
made final.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, Native American tribes, the scientific community, industry, 
or any other interested party concerning this proposed rule. We 
particularly seek comments concerning:
    1. The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefits of designation will outweigh any benefits of 
exclusion;
    2. Specific information on the numbers and distribution of the 
spruce-fir moss spider and what habitat is essential to the 
conservation of the species and why;
    3. Information on specific characteristics of habitat essential to 
the conservation of the spruce-fir moss spider;
    4. Land use practices and current or planned activities in the 
subject areas and their possible effects on proposed critical habitat;
    5. Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    6. Economic and other values associated with designating critical 
habitat for the spruce-fir moss spider, such as those derived from 
nonconsumptive uses (e.g., hiking, camping, bird watching, enhanced 
watershed protection, improved air quality, ``existence values,'' and 
reductions in administrative costs); and
    7. Potential adverse effects to the spruce-fir moss spider and/or 
its habitat associated with designating critical habitat for the 
species; e.g., increased risk to species from collecting or the 
destruction of its habitat.
    Please submit comments as an ASCII file format and avoid the use of 
special characters and encryption. Please also include ``Attn: [RIN 
number]'' and your name and return address in your e-mail message. If 
you do not receive a confirmation from the system that we have received 
your e-mail message, contact us directly by calling our Asheville Field 
Office (see ``Addresses'' section).
    Our practice is to make all comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we would withhold 
from the rulemaking record a respondent's identity, as allowable by 
law. If you wish for us to withhold your name and/or address, you must 
state this prominently at the beginning of your comments. However, we 
will not consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will seek the expert opinions of at least three appropriate 
and independent specialists regarding this proposed rule. The purpose 
of such review is to ensure that listing decisions are based on 
scientifically sound data, assumptions, and analyses. We will send 
these peer reviewers copies of this proposed rule immediately following 
publication in the Federal Register. We will invite these peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed designation of 
critical habitat.
    We will consider all comments and information received during the 
60-day comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be filed within 45 days of the date of this 
proposal. Such requests must be made in writing and should be addressed 
to the State Supervisor, Asheville Field Office (see Addresses 
section). Written comments submitted during the comment period receive 
equal consideration with those comments presented at a public hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this document easier to understand, including answers to questions 
such as the following: (1) Are the requirements in the document clearly 
stated? (2) Does the document contain unnecessary technical language or 
jargon that interferes with the clarity? (3) Does the format of the 
proposed rule (grouping and order of sections, use of headings, 
paragraphing, etc.) aid or reduce its clarity? (4) Is the description 
of the notice in the Supplementary Information section of the preamble 
helpful in understanding the notice? (5) What else could we do to make 
the notice easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may e-mail your comments to this address: 
<a href="/cdn-cgi/l/email-protection#13566b7670607670537a7c603d777c7a3d747c65"><span class="__cf_email__" data-cfemail="36734e5355455355765f59451852595f18515940">[email protected]</span></a>.

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is a significant regulatory action and has been reviewed by the Office 
of Management and Budget (OMB).

[[Page 59806]]

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

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

    (c) The proposed rule, if made final, will not significantly impact 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. Federal agencies currently are 
required to ensure that their activities do not jeopardize the 
continued existence of the species and we do not anticipate that the 
adverse modification prohibition (resulting from critical habitat 
designation) will have any incremental effects in areas of proposed 
critical habitat.
    (d) This rule will not raise novel legal or policy issues. The 
proposed rule follows the requirements for determining critical habitat 
contained in the Act.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    In the draft economic analysis (under section 4 of the Act), we 
will determine whether designation of critical habitat will have a 
significant effect on a substantial number of small entities. As 
discussed under Regulatory Planning and Review above, this rule is not 
expected to result in any restrictions in addition to those currently 
in existence for areas of proposed critical habitat.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    In the economic analysis, we will determine whether designation of 
critical habitat will cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers; 
individual industries; Federal, State, or local government agencies; or 
geographic regions, or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. As discussed above, we anticipate that the designation of 
critical habitat will not have any additional effects on these 
activities in areas of critical habitat within the geographical range 
occupied by the species.

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.):
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will not be affected unless they propose an action 
requiring Federal funds, permits, or other authorization. Any such 
activity will require that the involved Federal agency ensure that the 
action will not adversely modify or destroy designated critical 
habitat.
    b. This rule will not produce a Federal mandate on State, local, or 
tribal

[[Page 59807]]

governments or the private sector of $100 million or greater in any 
year; that is, it is not a ``significant regulatory action'' under the 
Unfunded Mandates Reform Act. The designation of critical habitat 
imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This proposed rule, if made final, will not ``take'' 
private property. The designation of critical habitat affects only 
Federal agency actions. Federal actions on private land could be 
affected by critical habitat designation; however, we expect no 
regulatory effect from this designation since all proposed areas are 
considered to be within the geographical range occupied by the species 
and would be reviewed under both the jeopardy and adverse modification 
standards under section 7 of the Act.
    The rule will not increase or decrease the current restrictions on 
private property concerning taking of the spruce-fir moss spider as 
defined in section 9 of the Act and its implementing regulations (50 FR 
17.31). Additionally, critical habitat designation does not preclude 
the development of habitat conservation plans and the issuance of 
incidental take permits. Any landowners in areas that are included in 
the designated critical habitat will continue to have opportunity to 
utilize their property in ways consistent with the survival of the 
spruce-fir moss spider.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant federalism effects. A Federalism Assessment is not 
required. In keeping with Department of the Interior policy, we 
requested information from, and coordinated the development of this 
critical habitat proposal with, appropriate State resources agencies in 
North Carolina and Tennessee. We will continue to coordinate any future 
designation of critical habitat for the spruce-fir moss spider with the 
appropriate State agencies. The designation of critical habitat for the 
spruce-fir moss spider imposes few, if any, additional restrictions to 
those currently in place and therefore has little incremental impact on 
State and local governments and their activities. The designation may 
have some benefit to these governments in that the areas essential to 
the conservation of the species are more clearly defined and, to the 
extent currently feasible, the primary constituent elements of the 
habitat necessary to the survival of the species are specifically 
identified. While making this definition and identification does not 
alter where and what federally sponsored activities may occur, doing so 
may assist these local governments in long-range planning (rather than 
waiting for case-by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor 
will review the final determination for this proposal. We will make 
every effort to ensure that the final determination contains no 
drafting errors, provides clear standards, simplifies procedures, 
reduces burden, and is clearly written such that litigation risk is 
minimized.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. This rule will not impose new record-keeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Asheville Field Office (see Addresses 
section).

Author

    The primary author of this document is John Fridell (see Addresses 
section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    For the reasons given in the preamble, we propose to amend 50 CFR 
part 17 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.

    2. In Sec. 17.11(h) revise the entry for the ``Spider, spruce-fir 
moss'' under ``ARACHNIDS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
            Arachnids
 
                   *                  *                  *                  *                  *                  *                  *
Spider, spruce-fir moss..........  Microhexura           U.S.A. (NC, TN)....  NA.................  E                       576    17.95 (g)           NA
                                    montivaga.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 59808]]

    3. Amend Sec. 17.95 by adding paragraph (g) to read as follows:


Sec. 17.95    Critical habitat-fish and wildlife.

* * * * *
    (g) Arachnids.
    Spruce-fir moss spider (Microhexura montivaga)
    1. Critical habitat units proposed for designation as critical 
habitat and their ownership are described below and depicted in the 
following maps.
BILLING CODE 4310-55-P

[[Page 59809]]

[GRAPHIC] [TIFF OMITTED] TP06OC00.019

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

[[Page 59810]]

from the intersection of the 1,646-m (5,400-ft) contour with the State 
line, south of Mingus Lead, Tennessee, southwest and then west to the 
intersection of the 1,646-m (5,400-ft) contour with the State line, 
east of The Narrows and west of Jenkins Knob, North Carolina, and 
Tennessee.
    Unit 2: Sevier County, Tennessee--all portions of the GSMNP at and 
above the 1,646-m (5,400-ft) contour, bounded on the southwest side by 
the North Carolina/Tennessee State line from the intersection of the 
State line with the 1,646-m (5,400-ft) contour near Dry Sluice Gap, 
southeast to the intersection of the State line with the 1,646-m 
(5,400-ft) contour at the head of Minnie Ball Branch, North Carolina, 
northwest of Newfound Gap, North Carolina, and Tennessee.

[[Page 59811]]

[GRAPHIC] [TIFF OMITTED] TP06OC00.020

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

[[Page 59812]]

the south of the North Carolina/Tennessee State line by the 1,646-m 
(5,400-ft) contour, from the intersection of the 1,646-m (5,400-ft) 
contour with the State line north of Elk Hollow Branch, Avery County, 
North Carolina, and southwest of Yellow Mountain, Carter County, 
Tennessee, west to the 1,646-m (5,400-ft) contour at Eagle Cliff, 
Mitchell County, North Carolina.

[[Page 59813]]

[GRAPHIC] [TIFF OMITTED] TP06OC00.021

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

[[Page 59814]]

    2. Within these areas, the primary constituent elements include:
    i) Fraser fir or fir-dominated spruce-fir forests at and above 
1,646-m (5,400-ft) in elevation; and
    ii) Moderately thick and humid, but not wet, moss (species in the 
genus Dicranodontium, and possibly Polytrichum) and/or liverwort mats 
on rock surfaces that are adequately sheltered from the sun and rain 
(by overhang and aspect) and include a thin layer of humid soil and/or 
humus between the moss and rock surface.
    3. Existing human structures and other features not containing all 
of the primary constituent elements are not considered critical 
habitat.

    Dated: September 28, 2000.
Kenneth L. Smith,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-25671 Filed 10-5-00; 8:45 am]
BILLING CODE 4310-55-C


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