59798 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules

for inspection and copying during

normal business hours in the FCC

Reference Center 445 12th Street, SW.,

Washington, DC. The complete text of

this decision may also be purchased

from the Commission’s copy contractor,

International Transcription Services,

Inc., (202) 857–3800, 1231 20th Street,

NW., Washington, DC 20036.

Provisions of the Regulatory

Flexibility Act of 1980 do not apply to

this proceeding.

Members of the public should note

that from the time a Notice of Proposed

Rule Making is issued until the matter

is no longer subject to Commission

consideration or court review, all ex

parte contacts are prohibited in

Commission proceedings, such as this

one, which involve channel allotments.

See 47 CFR 1.1204(b) for rules

governing permissible ex parte contacts.

For information regarding proper

filing procedures for comments, see 47

CFR 1.415 and 1.420.

Federal Communications Commission.

Barbara A. Kreisman,

Chief, Video Services Division, Mass Media

Bureau.

[FR Doc. 00–25739 Filed 10–5–00; 8:45 am]

BILLING CODE 6712–01–P

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.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), propose to

designate critical habitat for the sprucefir 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

john_fridell@fws.gov. 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

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules 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 sprucefir 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 (m2) (roughly 133 square

feet) of suitable microhabitat, and the

0.15-hectare site provided

approximately 7 m2 (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 sprucefir 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

59800 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules

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 wellshaded situations in the vicinity of rock

outcrops; and (4) on well-drained, wellshaded 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 firdominated 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 sprucefir 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 sprucefir 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 sprucefir 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 sprucefir 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

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules 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

59802 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules

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 sprucefir 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 sprucefir 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

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules 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 sprucefir 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 sprucefir 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

59804 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules

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

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules 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 sprucefir 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:

Execsec@ios.doi.gov.

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).

59806 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules

(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 sprucefir 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. NonFederal 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

Categories of activities Activities potentially affected by species listing only 1

Additional activities potentially

affected by critical habitat

designation 2

Federal Activities Potentially ...........

Affected 3 .........................................

Activities such as 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.

None.

Private and other non-Federal ........

Activities Potentially Affected 4 ........

Activities occurring on Federal lands or 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.).

None.

1This 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. 2This column represents the effects on activities resulting from critical habitat designation beyond the effects attributable to the listing of the

species. 3Activities initiated by a Federal agency.

4Activities 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

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules 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 § 17.11(h) revise the entry for the

‘‘Spider, spruce-fir moss’’ under

‘‘ARACHNIDS’’ to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

*******

ARACHNIDS

*******

Spider, spruce-fir

moss.

Microhexura

montivaga.

U.S.A. (NC, TN) ..... NA ........................... E 576 17.95 (g) NA

*******

59808 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules

3. Amend § 17.95 by adding

paragraph (g) to read as follows:

§ 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

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules 59809

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,

59810 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules

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.

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules 59811

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

59812 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules

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.

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules 59813

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.

59814 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Proposed Rules

2. Within these areas, the primary

constituent elements include:

i) Fraser fir or fir-dominated sprucefir 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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 660

[Docket No. 000927275-0275-01; I.D.

082800F]

RIN 0648-AO31

Fisheries off West Coast States and in

the Western Pacific; Pacific Coast

Groundfish Fishery; Amendment 12

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS is proposing a rule to

implement portions of Amendment 12

to the Pacific Coast Groundfish Fishery

Management Plan (FMP). The Pacific

Fishery Management Council (Council)

prepared Amendment 12 to provide

procedures for developing rebuilding

plans for overfished species, for setting

guidelines for contents of rebuilding

plans, and for sending rebuilding plans

to NMFS for review and approval/

disapproval. Amendment 12 would also

declare all Pacific coast groundfish to be

fully utilized by domestic harvesters

and processors. This action would

remove references to foreign and joint

venture fishing in the groundfish

regulations, and is intended to update

the FMP and its implementing

regulations to reflect the current status

of the fishery.

DATES: Comments must be submitted in

writing by November 20, 2000.

ADDRESSES: Send comments to Donna

Darm,, Acting Administrator, Northwest

Region, (Regional Administrator) NMFS,

7600 Sand Point Way NE., Seattle, WA

98115; or Rebecca Lent, Administrator,

Southwest Region, NMFS, 501 West

Ocean Blvd., Suite 4200, Long Beach,

CA 90802-4213. Copies of Amendment

12 to the Pacific Coast Groundfish FMP,

and the Environmental Assessment/

Regulatory Impact Review (EA/RIR) are

available from Donald McIsaac,

Executive Director, Pacific Fishery

Management Council, 2130 SW Fifth

Avenue, Suite 224, Portland, OR 97201.

Send comments regarding any

ambiguity or unnecessary complexity

arising from the language used in this

rule to William Stelle, Jr. or Rebecca

Lent.

FOR FURTHER INFORMATION CONTACT:

William Robinson at: phone, 206-526-

6140; fax, 206-526-6736, and email,

bill.robinson@noaa.gov Svein Fougner

at: phone, 562-980-4000; fax, 562-980-

4047; and email,

svein.fougner@noaa.gov

Electronic Access: This Federal

Registerdocument is also accessible via

the internet at the website of the Office

of the Federal Register: <<http://

www.access.gpo.gov/su-docs/aces/

aces140.html.≤≤

SUPPLEMENTARY INFORMATION: NMFS is

proposing this rule to implement the

portions of Amendment 12 that declare

the West Coast groundfish resource fully

utilized by domestic harvesting and

processing entities. Minor regulatory

changes would be needed to make the

regulations at 50 CFR part 660

consistent with Amendment 12. This

proposed rule is based on the Council’s

recommendations, under the authority

of the Pacific Coast Groundfish FMP

and the Magnuson Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act). The

background and rationale for the

Council’s recommendations are

summarized here; further details appear

in the EA/RIR prepared by the Council

for Amendment 12.

Background

In September 1998, the Council

adopted Amendment 11 to the FMP to

make the FMP consistent with revisions

to the Magnuson-Stevens Act. Among

other things, Amendment 11 set control

rules to define rates of ‘‘overfishing’’

and set defined levels at which managed

stocks are considered ‘‘overfished.’’

Amendment 11 was approved and

incorporated into the FMP in March

1999.

While implementing Amendment 11

provisions for rebuilding overfished

stocks, the Council determined that it

needed to set procedures within the

groundfish FMP for developing

overfished species rebuilding plans and

for providing NMFS with the

opportunity to review and approve/

disapprove those plans. Amendment 12

provides a process by which the Council

will develop overfished species

rebuilding plans during its annual

specifications and management

measures process.

During the Council’s two-meeting

process for setting annual specifications

and management measures (usually

September and November,) the Council

would make overfished species

rebuilding plans available for public

review, and would incorporate

measures to implement those plans

within the annual specifications and

management measures. Rebuilding plan

contents are defined in the FMP and

rely upon the Council’s annual stock

assessment and review process. Once

the Council approves a new rebuilding

plan, it would submit that plan for

NMFS review and approval/

disapproval, generally at the same time

that it submits its annual specifications

package for review and approval/

disapproval. This process would ensure

that rebuilding efforts are incorporated

into fishery management measures as

quickly and efficiently as practicable,

and that they are consistent with

management measures for other

groundfish species.

Procedural matters developed in

Amendment 12 for overfished species

rebuilding plans provide the Council

with direction for future activities, are

not regulatory in nature, and so do not

result in any change to regulations.

However, Amendment 12 also

announces that the Pacific Coast

groundfish resource is fully utilized by

domestic harvesting and processing

interests and provides an opportunity

for NMFS to update its regulations to

recognize this fully utilized status.