9540 Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules

impose a minimal burden on small

entities.

E. Federal Rules That May Duplicate,

Overlap, or Conflict With the Proposed

Rules

37. None.

Ordering Clauses

38. Pursuant to Sections 1, 3, 4, 201–

205, 251 of the Communications Act of

1934, as amended, 47 U.S.C. 151, 153,

154, 201–205, and 251, this Second

Further Notice of Proposed Rulemaking

is hereby Adopted.

39. The Commission’s Consumer

Information Bureau, Reference

Information Center, Shall Send a copy

of this Second Report and Order and

Second Further Notice of Proposed

Rulemaking, including the Initial and

Final Regulatory Flexibility Analyses, to

the Chief Counsel for Advocacy of Small

Business Administration.

List of Subjects

Communications common carriers,

Telecommunications, Telephone.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 01–3173 Filed 2–7–01; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AH33

Endangered and Threatened Wildlife

and Plants; Proposed Designation of

Critical Habitat for the Appalachian

Elktoe

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: We, the Fish and Wildlife

Service (Service), propose to designate

critical habitat for the Appalachian

elktoe (Alasmidonta raveneliana) under

the Endangered Species Act of 1973, as

amended (Act). The areas proposed for

critical habitat designation include

approximately 231.1 kilometers (km)

(144.3 river miles [rm]) of various

segments of rivers in Tennessee and

North Carolina.

If this proposal is made final, section

7(a)(2) of the Act requires that Federal

agencies ensure that actions they fund,

permit, or carry out are not likely to

result in the destruction or adverse

modification of critical habitat. The

regulatory effect of the 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 April 9, 2001. Requests for

public hearings must be received, in

writing, at the address shown in the

ADDRESSES section by March 26, 2001.

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 the 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,

(828)258–3939.

SUPPLEMENTARY INFORMATION:

Background

The Appalachian elktoe (Alasmidonta

raveneliana) is a freshwater mussel that

has a thin, kidney-shaped shell,

reaching up to about 10 centimeters (4

inches) (J.A. Fridell, pers. observation

1999). Juveniles generally have a

yellowish-brown periostracum (outer

shell surface), while the periostracum of

the adults is usually dark brown to

greenish-black in color. Although rays

are prominent on some shells,

particularly in the posterior portion of

the shell, many individuals have only

obscure greenish rays. The shell nacre

(inside shell surface) is shiny, often

white to bluish-white, changing to a

salmon, pinkish, or brownish color in

the central and beak cavity portions of

the shell; some specimens may be

marked with irregular brownish

blotches (adapted from Clarke 1981).

Clarke (1981) contains a detailed

description of the species’ shell, with

illustrations; Ortmann (1921) discussed

soft parts.

Distribution, Habitat, and Life History

The Appalachian elktoe is known

only from the mountain streams of

western North Carolina and eastern

Tennessee. Although the complete

historical range of the Appalachian

elktoe is unknown, available

information suggests that the species

once lived in the majority of the rivers

and larger creeks of the upper

Tennessee River system in North

Carolina. In Tennessee, the species is

known only from its present range in

the main stem of the Nolichucky River.

Currently, the Appalachian elktoe has

a very fragmented, relict distribution.

The species still survives in scattered

pockets of suitable habitat in portions of

the Little Tennessee River system,

Pigeon River system, the Little River in

North Carolina, and the Nolichucky

River system in North Carolina and

Tennessee. In the Little Tennessee River

system in North Carolina, populations

survive in the reach of the main stem of

the Little Tennessee River, between the

city of Franklin and Fontana Reservoir,

in Swain and Macon Counties (Service

1994, 1996; McGrath 1999; J.A. Fridell,

pers. observation 2000), and in scattered

reaches of the main stem of the

Tuckasegee River in Jackson and Swain

Counties (M. Cantrell, Service, pers.

comm. 1996; J.A. Fridell, pers.

observation 1996, 1997; McGrath 1998),

from below the town of Cullowhee

downstream to Bryson City. A single

live individual and one shell have also

been recently recorded from the Cheoah

River, below Santeetlah Lake, in

Graham County (W. Pennington,

Pennington and Associates, Inc.,

Knoxville, Tennessee, pers. comm.

2000).

In the Pigeon River system in North

Carolina, a small population of the

Appalachian elktoe occurs in small

scattered sites in the West Fork Pigeon

River and in the main stem of the

Pigeon River, above Canton, in

Haywood County (J.A. Fridell, pers.

observation 1999; McGrath 1998). The

Little River (upper French Broad River

system) population of the species, in

Transylvania County, North Carolina

(J.A. Fridell, pers. observation 2000; C.

McGrath, North Carolina Wildlife

Resources Commission (NCWRC), pers.

Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules 9541

comm. 2000), is restricted to small

scattered pockets of suitable habitat

downstream of Cascade Lake.

In the Nolichucky River system, the

Appalachian elktoe survives in a few

scattered areas of suitable habitat in the

Toe River, Yancey and Mitchell

Counties, North Carolina (Service 1994,

1996; McGrath 1996, 1999); Cane River,

Yancey County, North Carolina (Service

1994, 1996; McGrath 1997); and the

main stem of the Nolichucky River,

Yancey and Mitchell Counties, North

Carolina, extending downstream to the

vicinity of Erwin in Unicoi County,

Tennessee (Service 1994, 1996). Two

individuals have also recently been

found in the North Toe River, Yancey

and Mitchell Counties, North Carolina,

below the confluence of Crabtree Creek

(McGrath 1999), and 15 live individuals,

with no more than 2 to 3 at each site

(J.A. Fridell, pers. observation 1998,

2000) and one shell (S. Fraley,

Tennessee Valley Authority, Norris,

Tennessee, pers. comm. 1999) have been

recorded from the South Toe River,

Yancey County, North Carolina. The

majority of the surviving occurrences of

the Appalachian elktoe appear to be

small to extremely small and restricted

to scattered pockets of suitable habitat.

Historically, the species has been

recorded from Tulula Creek (Tennessee

River drainage), the main stem of the

French Broad River, and the Swannanoa

River (French Broad River system)

(Clarke 1981), but has apparently been

eliminated from these streams (Service

1994, 1996). There is also a historical

record of the Appalachian elktoe from

the North Fork Holston River in

Tennessee (S. S. Haldeman collection);

however, this record is believed to

represent a mislabeled locality (Gordon

1991). If the historical record for the

species in the North Fork Holston River

was a good record, the species has

apparently been eliminated from this

river as well.

We know very little about the life

history and microhabitat requirements

of the Appalachian elktoe. The species

has been reported from relatively

shallow, medium-sized creeks and

rivers with cool, clean, well-oxygenated,

moderate-to fast-flowing water. The

species is most often found in riffles,

runs, and shallow flowing pools with

stable, relatively silt-free, coarse sand

and gravel substrate associated with

cobble, boulders, and/or bedrock.

Stability of the substrate appears to be

critical to the Appalachian elktoe, and

the species is seldom found in stream

reaches with accumulations of silt or

shifting sand, gravel, or cobble.

Individuals that have been encountered

in these areas are believed to have been

scoured out of upstream areas during

periods of heavy rain, and have not been

found on subsequent surveys (C.

McGrath, pers. comm. 1996; J.A. Fridell,

pers. observation 1995, 1996, 1999).

Like other freshwater mussels, the

Appalachian elktoe feeds by filtering

food particles from the water column.

The specific food habits of the species

are unknown, but other freshwater

mussels have been documented to feed

on detritus, diatoms, phytoplankton,

and zooplankton (Churchill and Lewis

1924). The reproductive cycle of the

Appalachian elktoe is similar to that of

other native freshwater mussels. Males

release sperm into the water column;

the sperm are then taken in by the

females through their siphons during

feeding and respiration. The females

retain the fertilized eggs in their gills

until the larvae (glochidia) fully

develop. The mussel glochidia are

released into the water, and within a

few days they must attach to the

appropriate species of fish, which they

then parasitize for a short time while

they develop into juvenile mussels.

They then detach from their fish host

and sink to the stream bottom where

they continue to develop, provided they

land in a suitable substrate with the

correct water conditions. Personnel with

the Tennessee Technological University

at Cookeville, Tennessee, identified the

banded sculpin (Cottus carolinae) as a

host species for glochidia of the

Appalachian elktoe (M. Gordon,

Tennessee Technological University,

pers. comm. 1993). The Environmental

Protection Agency’s (EPA) Science and

Ecosystem Support Division’s Aquatic

Lab in Athens, Georgia, documented the

mottled sculpin (Cottus bairdi), a

species more common within the

majority of the range of the Appalachian

elktoe than the banded sculpin, as a

suitable host for Appalachian elktoe (A.

Keller, EPA, Athens, Georgia, pers.

comm. 1999). The life span and many

other aspects of the mussel’s life history

are currently unknown.

Reasons for Decline and Threats to

Surviving Populations

Available information indicates that

several factors adversely affect water

and habitat quality of our creeks and

rivers and have contributed to the

decline and loss of populations of the

Appalachian elktoe and threaten the

remaining populations. These factors

include pollutants in wastewater

discharges (sewage treatment plants and

industrial discharges); habitat loss and

alteration associated with

impoundments, channelization, and

dredging operations; and the run-off of

silt, fertilizers, pesticides, and other

pollutants from poorly implemented

land-use activities (Service 1994, 1996).

Freshwater mussels, especially in

their early life stages, are extremely

sensitive to many pollutants (chlorine,

ammonia, heavy metals, high

concentrations of nutrients, etc.)

commonly found in municipal and

industrial wastewater effluents (Havlik

and Marking 1987, Goudreau et al.

1988, Keller and Zam 1991). In the early

1900s, Ortmann (1909) noted that the

disappearance of mussels is one of the

first and most reliable indicators of

stream pollution.

Activities such as impoundments,

channelization projects, and in-stream

dredging operations eliminate mussel

habitat. These activities can also alter

the quality and stability of the

remaining stream reaches by affecting

the flow regimes, water velocities, and

water temperature and chemistry.

Agriculture (both crop and livestock)

and forestry operations, mining

activities, highway and road

construction, residential and industrial

developments, and other construction

and land-clearing activities that do not

adequately control soil erosion and

storm-water run-off contribute excessive

amounts of silt, pesticides, fertilizers,

heavy metals, and other pollutants.

These pollutants suffocate and poison

freshwater mussels. The run-off of storm

water from cleared areas, roads,

rooftops, parking lots, and other

developed areas, which is often ditched

or piped directly into streams, not only

results in stream pollution but also

results in increased water volume and

velocity during heavy rains. The high

volume and velocity cause channel and

stream-bank scouring that leads to the

degradation and elimination of mussel

habitat. Construction and land-clearing

operations are particularly detrimental

when they result in the alteration of

flood plains or the removal of forested

stream buffers that ordinarily would

help maintain water quality and the

stability of stream banks and channels

by absorbing, filtering, and slowly

releasing rainwater. When storm water

run-off increases from land-clearing

activities, less water is absorbed to

recharge ground water levels. Therefore,

flows during dry months can decrease

and adversely affect mussels and other

aquatic organisms.

Previous Federal Actions

We recognized the Appalachian

elktoe in the May 22, 1984, Animal

Notice of Review published in the

Federal Register (49 FR 21675) and

again in the January 6, 1989, Animal

Notice of Review (54 FR 579) as a

species under review for potential

9542 Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules

addition to the Federal List of

Endangered and Threatened Wildlife

and Plants. We designated the

Appalachian elktoe as a category 2

candidate for Federal listing on these

candidate lists. We no longer maintain

a list of category 2 candidate species. At

that time, category 2 represented those

species for which we had some

information indicating that the taxa may

be under threat, but sufficient

information was lacking to determine if

they warranted Federal listing and to

prepare a proposed rule. Subsequently,

surveys of historical and potential

Appalachian elktoe habitat were

conducted and revealed that the species

had undergone a significant decline

throughout its historical range and that

the remaining occurrences were

threatened by many of the same factors

that are believed to have resulted in this

decline. Accordingly, on June 10, 1992,

we reclassified the Appalachian elktoe

as a category 1 candidate. At that time,

category 1 candidates were those

species for which we had enough

substantial information on biological

vulnerability and threats to support

proposals to list them as endangered or

threatened species. On April 20, 1992,

and again on August 21, 1992, we

notified appropriate Federal, State, and

local government agencies that we were

gathering information on the

Appalachian elktoe and that the species

might be proposed for Federal listing.

We received a total of six written

comments on these two notices. The

North Carolina Wildlife Resources

Commission (NCWRC) (two written

comments), the North Carolina Natural

Heritage Program (two written

comments), and an interested biologist

expressed their support for the species’

being proposed for protection under the

Act. The U.S. Soil Conservation Service

stated that they did not have any

additional information on this species.

We did not receive any comments

opposing the potential listing.

On September 3, 1993, we published

in the Federal Register (58 FR 46940) a

proposed rule to list the Appalachian

elktoe as an endangered species. The

proposed rule provided information on

the species’ biology, status, and threats

to its continued existence and included

our proposed determination that the

designation of critical habitat was not

prudent for the Appalachian elktoe. We

solicited comments or suggestions

concerning the proposed rule from the

public, concerned governmental

agencies, the scientific community,

industry, and other interested parties.

We requested comments from

appropriate Federal and State agencies,

county governments, scientific

organizations, and interested parties by

letters dated September 14, 1993, and

January 27, 1994. We published a legal

notice, which invited general public

comment, in the following newspapers:

The Erwin Record, Erwin, Tennessee,

September 22, 1993; Mitchell News

Journal, Spruce Pine, North Carolina,

September 22, 1993; Yancey Journal,

Burnsville, North Carolina, September

22, 1993; Smoky Mountain Times,

Bryson City, North Carolina, September

23, 1993; and Franklin Press, Franklin,

North Carolina, September 24, 1993.

In response to the proposed rule, we

received four comments, one supporting

the listing and three requesting a public

hearing. In the Federal Register of

January 21, 1994, (59 FR 3326) we

published a notice announcing the

public hearing and the reopening of the

comment period to extend to February

21, 1994, to ensure that all interested

parties had ample time to provide

information on the proposed rule. On

February 8, 1994, we held the public

hearing at the Mitchell High School in

Bakersville, North Carolina. We

received 20 verbal statements and

written comments during the public

hearing; 14 of them expressed

opposition to the listing of the

Appalachian elktoe, 5 expressed

support for the listing, and 1 expressed

an interest but offered neither support

nor opposition. We received 40

additional written comments during the

reopened comment period; 8 opposed

the listing, 31 supported the listing, and

1 expressed neither opposition nor

support.

Following our review of all the

comments and information received

throughout the listing process, by final

rule (59 FR 60324) dated November 23,

1994, we listed the Appalachian elktoe

as endangered. We addressed the

comments received throughout the

listing process and incorporated

changes into the final rule, as

appropriate. That decision included our

determination that the designation of

critical habitat was not prudent for the

Appalachian elktoe because, after a

review of all the available information,

we determined that such designation

would not be beneficial to the species

(see ‘‘Prudency Determination’’ section

below).

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 Service’s ‘‘not prudent’’ critical

habitat determinations for four species

in North Carolina—the Appalachian

elktoe (Alasmidonta raveneliana),

Carolina heelsplitter (Lasmigona

decorata), spruce-fir moss spider

(Microhexura montivaga), 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 February 1,

2001, a withdrawal of the existing not

prudent determination for the

Appalachian elktoe, together with a new

proposed critical habitat determination

if appropriate. We have agreed further

that if, upon consideration of all the

available information and comments,

we determine that designating critical

habitat is not prudent for the

Appalachian elktoe, we will submit a

final rule of that finding to the Federal

Register by August 1, 2001. On the other

hand, if we determine that the

designation of critical habitat is prudent

for the Appalachian elktoe, we will send

a final rule of this finding to the Federal

Register by November 1, 2001.

This proposal is the product of our

reexamination of our prudency

determination for the Appalachian

elktoe 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 the 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 November 23,

1994, final rule, we determined that the

designation of critical habitat was not

Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules 9543

prudent for the Appalachian elktoe

because such designation would not be

beneficial to the species.

A critical habitat designation has no

effect on actions in which a Federal

agency is not involved, including

actions on private or State land unless

these actions require Federal funds or a

Federal permit. The regulations that

provide for the protection of designated

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 analysis of

adverse modification or destruction of

critical habitat, 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 restricted

range and limited amount of suitable

habitat available to the Appalachian

elktoe, we determined in the November

23, 1994, 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 the designation of

critical habitat would not provide any

additional protection benefitting the

species beyond that provided by the

jeopardy standard.

In addition, we were concerned that

the rarity and uniqueness of the

Appalachian elktoe could generate

interest in the species and that the

publicity associated with the

designation of critical habitat, together

with the publication of maps and

descriptions of critical habitat, could

increase the vulnerability of the species

to collection, vandalism, or other

disturbance. Although we did not base

our ‘‘not prudent’’ determination on

increased threat to the Appalachian

elktoe, we did consider the potential

increased threat to the species from

critical habitat designation in making

our determination that the designation

of critical habitat was not prudent for

the Appalachian elktoe because it

would not benefit the species.

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

Appalachian elktoe is 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. Although we have received

one unconfirmed report since the

Appalachian elktoe was listed as

endangered, where Appalachian elktoes

have been collected and used as fish

bait, at this time we do not have specific

evidence for the taking, collection,

trade, vandalism, or other unauthorized

human disturbance specific to the

Appalachian elktoe. 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.

The 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, 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

Appalachian elktoe. It is true that we are

already working with Federal and State

agencies, private individuals, and

organizations in carrying out

conservation activities for the

Appalachian elktoe and in conducting

surveys for additional occurrences of

the species and to assess habitat

conditions. These entities are fully

aware of the distribution, status, and

habitat requirements for the

Appalachian elktoe, as currently known.

However, as stated above, some

additional educational or informational

benefit may result from designating

critical habitat. Therefore, we propose

that the designation of critical habitat is

prudent for the Appalachian elktoe.

Proposed 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 consideration 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

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 where listing under the Act is no

longer necessary. Regulations under 50

CFR 424.02(j) define ‘‘special

management considerations or

protection’’ to mean any methods or

procedures useful in protecting the

physical and biological features of the

environment for the conservation of

listed species.

In order to be included in a critical

habitat designation, the habitat must

first be ‘‘essential to the conservation of

the species.’’ Critical habitat

designations identify, to the extent

known using the best scientific and

commercial data available, habitat areas

that provide essential life cycle needs of

the species (i.e., areas on which are

found the primary constituent elements,

as defined at 50 CFR 424.12(b)).

Section 4 requires that we designate

critical habitat at the time of listing and

based on what we know at the time of

the designation. When we designate

critical habitat at the time of listing or

under short court-ordered deadlines, we

9544 Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules

will often not have sufficient

information to identify all areas of

critical habitat. We are required,

nevertheless, to make a decision and

thus must base our designations on

what, at the time of designation, we

know to be critical habitat.

Within the geographic area occupied

by the species, we will designate only

areas currently known to be essential.

Essential areas should already have the

features and habitat characteristics that

are necessary to sustain the species. We

will not speculate about what areas

might be found to be essential if better

information became available, or what

areas may become essential over time. If

the information available at the time of

designation does not show that an area

provides essential life cycle needs of the

species, then the area should not be

included in the critical habitat

designation. Within the geographic area

occupied by the species, we will not

designate areas that do not now have the

primary constituent elements, as

defined at 50 CFR 424.12(b), that

provide essential life cycle needs of the

species.

Our regulations state that, ‘‘The

Secretary shall designate as critical

habitat areas outside the geographical

area presently occupied by a species

only when a designation limited to its

present range would be inadequate to

ensure the conservation of the species.’’

(50 CFR 424.12(e)). Accordingly, when

the best available scientific and

commercial data do not demonstrate

that the conservation needs of the

species require designation of critical

habitat outside of occupied areas, we

will not designate critical habitat in

areas outside the geographic area

occupied by the species.

The Service’s Policy on Information

Standards Under the Endangered

Species Act, published in the Federal

Register on July 1, 1994 (59 FR 34271),

provides criteria, establishes

procedures, and provides guidance to

ensure that decisions made by the

Service represent the best scientific and

commercial data available. It requires

Service biologists, to the extent

consistent with the Act and with the use

of the best scientific and commercial

data available, to use primary and

original sources of information as the

basis for recommendations to designate

critical habitat. When determining

which areas are critical habitat, a

primary source of information should be

the listing package for the species.

Additional information may be obtained

from a recovery plan, articles in peerreviewed journals, conservation plans

developed by States and counties,

scientific status surveys and studies,

and biological assessments or other

unpublished materials (i.e., gray

literature).

Habitat is often dynamic, and species

may move from one area to another over

time. Furthermore, we recognize that

designation of critical habitat may not

include all of the habitat areas that may

eventually be determined to be

necessary for the recovery of the

species. For these reasons, all should

understand that critical habitat

designations do not signal that habitat

outside the designation is unimportant

or may not be required for recovery.

Areas outside the critical habitat

designation will continue to be subject

to conservation actions that may be

implemented under section 7(a)(1) and

to the regulatory protections afforded by

the section 7(a)(2) jeopardy standard

and the section 9 take prohibition, as

determined on the basis of the best

available information at the time of the

action. We specifically anticipate that

federally funded or assisted projects

affecting listed species outside their

designated critical habitat areas may

still result in jeopardy findings in some

cases. Similarly, critical habitat

designations made on the basis of the

best available information at the time of

designation will not control the

direction and substance of future

recovery plans, habitat conservation

plans, or other species conservation

planning efforts if new information

available to these planning efforts calls

for a different outcome.

Section 4(b)(2) of the Act requires us

to base critical habitat proposals 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

Appalachian elktoe in accordance with

the goals outlined in our recovery plan

for the species (Service 1996), and are

based on the best scientific and

commercial information currently

available to us concerning the species’

known present and historical 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

Appalachian elktoe, include all known

surviving occurrences of the species,

and are essential for the conservation of

the species. 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

indicating that other areas within the

Appalachian elktoe’s historical range

are essential to the conservation of the

species, we will revise the proposed

critical habitat or designated critical

habitat for the Appalachian elktoe

accordingly.

Primary Constituent Elements

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

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

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 historical

geographical and ecological distribution

of a species.

When considering areas for

designation as critical habitat, we are

required to focus on the principal

biological and 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 Appalachian elktoe

are:

1. Permanent, flowing, cool, clean

water;

2. Geomorphically stable stream and

river channels and banks;

3. Pool, riffle, and run sequences

within the channel;

4. Sand, gravel, cobble, boulder, and

bedrock substrates with no more than

low amounts of fine sediment;

5. Moderate to high stream gradient;

6. Periodic natural flooding; and

Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules 9545

7. fish hosts, with adequate living,

foraging, and spawning areas for them.

Areas Proposed for Designation as

Critical Habitat

The proposed designation of critical

habitat for the Appalachian elktoe

includes 38.5 kilometers (km)—24.0

river miles (rm)—of the Little Tennessee

River in Swain and Macon Counties,

North Carolina; 41.6 km (26.0 rm) of the

Tuckasegee River in Jackson and Swain

Counties, North Carolina; 14.6 km (9.1

rm) of the Cheoah River in Graham

County, North Carolina; 7.5 km (4.7 rm)

of the Little River in Transylvania

County, North Carolina; 17.8 km (11.1

rm) of the West Fork Pigeon River and

the Pigeon River in Haywood County,

North Carolina; 22.6 km (14.1 rm) of the

South Toe River and 26.4 km (16.5 rm)

of the Cane River in Yancey County,

North Carolina; 5.9 km (3.7 rm) of the

North Toe River and 34.6 km (21.6 rm)

of the Toe River in Yancey and Mitchell

Counties, North Carolina; and 21.6 km

(13.5 rm) of the Nolichucky River in

Yancey and Mitchell Counties, North

Carolina, and Unicoi County,

Tennessee.

Approximately 67 percent—14.4 km

(9.0 rm)—of the portion of the

Nolichucky River that is proposed for

designation as critical habitat is

bordered by the Pisgah National Forest

in North Carolina and the Cherokee

National Forest in Tennessee; 88

percent—12.8 km (8.0 rm)—of the

portion of the Cheoah River proposed

for designation as critical habitat is

bordered by the Nantahala National

Forest; and a small percentage of the

portion of the Tuckasegee River

proposed for designation as critical

habitat is bordered by land belonging to

the Eastern Band of the Cherokee

Indians. The remainder of the land

along the portions of the Nolichucky

River, Cheoah River, and Tuckasegee

River proposed for designation as

critical habitat, and all of the land along

the portions of the Little Tennessee

River, Little River, West Fork Pigeon

River, Pigeon River, North Toe River,

South Toe River, and Cane River that

are proposed for designation as critical

habitat are privately owned.

We are proposing the following areas

for designation as critical habitat for the

Appalachian elktoe; these areas provide

all of the above primary constituent

elements. The lateral extent of proposed

critical habitat is up to the ordinary high

water line on each bank. In addition,

given the threats to the species’ habitat

discussed in the final listing rule (59 FR

60324) and summarized above, we

believe these areas may need special

management considerations or

protection:

Unit 1. Macon County and Swain

County, North Carolina

Unit 1 encompasses the main stem of

the Little Tennessee River (Tennessee

River system), from the Lake Emory

Dam at Franklin, Macon County, North

Carolina, downstream to the backwaters

of Fontana Reservoir in Swain County,

North Carolina. This unit is part of the

currently occupied range of the

Appalachian elktoe and, based on the

best available information, provides the

physical and biological habitat elements

necessary for the life cycle needs of the

species. In accordance with the recovery

goals and criteria outlined in the

recovery plan for the Appalachian

elktoe (Service 1996), protection of this

unit is essential to the conservation of

the species.

Unit 2. Jackson County and Swain

County, North Carolina

Unit 2 encompasses the main stem of

the Tuckasegee River (Little Tennessee

River system), from the N.C. State Route

1002 Bridge in Cullowhee, Jackson

County, North Carolina, downstream to

the N.C. Highway 19 Bridge, north of

Bryson City, Swain County, North

Carolina. This unit is part of the

currently occupied range of the

Appalachian elktoe and, based on the

best available information, provides the

physical and biological habitat elements

necessary for the life cycle needs of the

species. In accordance with the recovery

goals and criteria outlined in the

recovery plan for the Appalachian

elktoe (Service 1996), protection of this

unit is essential to the conservation of

the species.

Unit 3. Graham County, North Carolina

Unit 3 encompasses the main stem of

the Cheoah River (Little Tennessee

River system), from the Santeetlah Dam,

downstream to its confluence with the

Little Tennessee River. This unit is part

of the currently occupied range of the

Appalachian elktoe and, based on the

best available information, provides the

physical and biological habitat elements

necessary for the life cycle needs of the

species. In accordance with the recovery

goals and criteria outlined in the

recovery plan for the Appalachian

elktoe (Service 1996), protection of this

unit is essential to the conservation of

the species.

Unit 4. Transylvania County, North

Carolina

Unit 4 encompasses the main stem of

the Little River (French Broad River

system), from the Cascade Lake Power

Plant, downstream to its confluence

with the French Broad River. This unit

is part of the currently occupied range

of the Appalachian elktoe and, based on

the best available information, provides

the physical and biological habitat

elements necessary for the life cycle

needs of the species. In accordance with

the recovery goals and criteria outlined

in the recovery plan for the Appalachian

elktoe (Service 1996), protection of this

unit is essential to the conservation of

the species.

Unit 5. Haywood County, North

Carolina

Unit 5 encompasses the main stem of

the West Fork Pigeon River (French

Broad River system), from the

confluence of the Little East Fork Pigeon

River, downstream to the confluence of

the East Fork Pigeon River, and the

main stem of the Pigeon River, from the

confluence of the West Fork Pigeon

River and the East Fork Pigeon River,

downstream to the N.C. Highway 215

Bridge crossing, south of Canton, North

Carolina. This unit is part of the

currently occupied range of the

Appalachian elktoe and, based on the

best available information, provides the

physical and biological habitat elements

necessary for the life cycle needs of the

species. In accordance with the recovery

goals and criteria outlined in the

recovery plan for the Appalachian

elktoe (Service 1996), protection of this

unit is essential to the conservation of

the species.

Unit 6. Yancey County and Mitchell

County, North Carolina, and Unicoi

County, Tennessee

Unit 6 encompasses the main stem of

the North Toe River, Yancey and

Mitchell Counties, North Carolina, from

the confluence of Big Crabtree Creek,

downstream to the confluence of the

South Toe River; the main stem of the

South Toe River, Yancey County, North

Carolina, from the N.C. State Route 1152

Bridge, downstream to its confluence

with the North Toe River; the main stem

of the Toe River, Yancey and Mitchell

Counties, North Carolina, from the

confluence of the North Toe River and

the South Toe River, downstream to the

confluence of the Cane River; the main

stem of the Cane River, Yancey County,

North Carolina, from the N.C. State

Route 1381 Bridge, downstream to its

confluence with the Toe River; and the

main stem of the Nolichucky River from

the confluence of the Toe River and the

Cane River in Yancey County and

Mitchell County, North Carolina,

downstream to the U.S. Highway 23/

19W Bridge southwest of Erwin, Unicoi

County, Tennessee. This unit is part of

9546 Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules

the currently occupied range of the

Appalachian elktoe and, based on the

best available information, provides the

physical and biological habitat elements

necessary for the life cycle needs of the

species. In accordance with the recovery

goals and criteria outlined in the

recovery plan for the Appalachian

elktoe (Service 1996), protection of this

unit is essential to the conservation of

the species.

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, the critical habitat

designation would not afford any

protection under the Act against such

activities. Accordingly, the designation

of critical habitat on private land 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 a listed species. 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 opinion if requested by a

Federal agency. Formal conference

opinions on proposed critical habitat are

prepared according to 50 CFR 402.14 as

if critical habitat were designated. We

may adopt the formal conference

opinion as the biological opinion when

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 the designated

critical habitat of the Appalachian

elktoe 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 also requires

Federal agencies 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 an action that ‘‘appreciably

diminishes the value of critical habitat

for both the survival and recovery of a

listed 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 the

survival and recovery of the species are

appreciably reduced by the action.

Because of the small size of the majority

of the surviving populations of the

Appalachian elktoe, 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 Appalachian elktoe, 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 Appalachian elktoe is

appreciably diminished. This may

include any activity, regardless of the

activity’s location in relation to

designated or proposed critical habitat,

that would significantly alter the natural

flow regime, channel morphology or

geometry, or water chemistry or

temperature of any of the six proposed

critical habitat units, as described by the

constituent elements, or any activity

that could result in the significant

discharge or deposition of sediment,

excessive nutrients, or other organic or

chemical pollutants into any of the six

proposed critical habitat units. Such

activities include (but are not limited to)

carrying out or issuing permits,

authorization, or funding for reservoir

construction; stream alterations;

wastewater facility development;

hydroelectric facility construction and

operation; pesticide/herbicide

applications; forestry operations; and

road, bridge, and utility construction.

Please note that these same activities

also have the potential to jeopardize the

continued existence of the Appalachian

elktoe, and Federal agencies are already

required to consult with us on these

types of activities, or any other activity,

that may affect the species.

Requests for copies of the regulations

on listed wildlife and inquiries about

prohibitions and permits, or questions

regarding whether specific activities

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

Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules 9547

impacts of designating a particular area

as critical habitat. We may exclude areas

as critical habitat upon a determination

that the benefits of such exclusion

outweigh the benefits of specifying such

areas as critical habitat. We cannot

exclude such areas from critical habitat

when such exclusion will result in the

extinction of the species. We will

conduct an analysis of the economic

impacts of designating the areas

identified above as critical habitat prior

to a final determination. When a draft

economic analysis is completed, we will

announce its availability with a notice

in the Federal Register and 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, and

E.O. 13175 we are required to assess the

effects of critical habitat designations on

tribal land and tribal trust resources. A

portion of the Tuckasegee River that we

consider to be essential to the

conservation of the Appalachian elktoe

and that we are proposing for

designation as critical habitat for the

species is partially bordered by land

owned by the Eastern Band of the

Cherokee Indians. The short amount of

time allowed to us under the settlement

agreement (see ‘‘Previous Federal

Actions’’ section above) for preparing

this proposal has precluded us from

coordinating the proposal with the

Eastern Band of the Cherokee Indians.

However, subsequent to this proposal,

we will consult with them before

making a final determination as to

whether this reach of the Tuckasegee

River should be designated as critical

habitat for the Appalachian elktoe.

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;

2. Specific information on the

numbers and distribution of the

Appalachian elktoe 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 Appalachian elktoe;

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 Appalachian elktoe, such

as those derived from nonconsumptive

uses (e.g., hiking, camping, birdwatching, enhanced watershed

protection, improved air quality,

‘‘existence values,’’ and reductions in

administrative costs); and

7. Potential adverse effects to the

Appalachian elktoe and/or its habitat

associated with designating critical

habitat for the species; e.g., increased

risk to the species from collecting or the

destruction of its habitat.

8. Whether our approach to critical

habitat designation could be improved

or modified in any way to provide for

greater public participation and

understanding, or to assist us in

accommodating public concern and

comments.

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 also 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 a

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 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 notice

easier to understand, including answers

to questions such as the following: (1)

Are the requirements in the notice

clearly stated? (2) Does the notice

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 the following

address: Execsec@ios.doi.gov.

9548 Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules

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).

(a) In the economic analysis, we will

determine whether this rule will 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 Appalachian elktoe

was listed as an endangered species in

1994. 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 will

not jeopardize the continued existence

of the Appalachian elktoe.

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 of

the Act requires Federal agencies to

ensure that they do not jeopardize the

continued existence of the species.

Based on 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, which

came into play in 1994 when the species

was listed as endangered.)

(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 Appalachian elktoe since the

listing in 1994. As shown in Table 1

(below), no additional effects on agency

actions are anticipated to result from the

critical habitat designation. However,

we will continue to review this

proposed action for any inconsistencies

with other Federal agency actions.

TABLE 1.—IMPACTS OF APPALACHIAN ELKTOE 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 reservoir construction; stream alterations; wastewater facility development; hydroelectric facility construction and operation; pesticide/herbicide applications; forestry operations; road, bridge, and utility construction; or other activities that could result in direct or indirect impacts to

the Appalachian elktoe and/or its habitat.

None.

Private and other non-Federal Activities Potentially Affected 4.Activities occurring on Federal land or that require a action (permit, authorization, or funding) and that involve activities such as those listed

above that could result in ‘‘take’’ of the Appalachian elktoe or damage

or destruction of its habitat.

None.

1This column represents the activities potentially affected by listing the Appalachian elktoe as an endangered species (November 23, 1994; 59

FR 60324) 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

the 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 the 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 the 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 geographical 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 that

are 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.):

Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules 9549

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

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 new 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 the 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.

This rule will not increase or decrease

the current restrictions on private

property concerning taking of the

Appalachian elktoe as defined in

section 9 of the Act and its

implementing regulations (50 CFR

17.31). Additionally, critical habitat

designation does not preclude the

development of habitat conservation

plans and the issuance of incidental

take permits. Any landowner in areas

that are included in the designated

critical habitat will continue to have

opportunity to utilize his or her

property in ways consistent with the

survival of the Appalachian elktoe.

Federalism

In accordance with Executive Order

13132, this rule does not have

significant federalism effects. A

Federalism Assessment is not required.

In keeping with Department of the

Interior and Department of Commerce

policy, we requested information from,

and coordinated the development of this

critical habitat proposal with,

appropriate State natural resources

agencies in North Carolina and

Tennessee. We will continue to

coordinate any future designation of

critical habitat for the Appalachian

elktoe with the appropriate State

agencies. The designation of critical

habitat for the Appalachian elktoe

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 provide 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 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 burdens, and is clearly written,

such that the risk of litigation is

minimized.

Paperwork Reduction Act

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 ‘‘Elktoe, Appalachian’’ under

‘‘CLAMS’’ to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

9550 Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules

Species

Historic range Vertebrate population where

endangered or threatened Status Whenlisted

Critical

habitat

Special

rules Common name Scientific name

*******

CLAMS

*******

Elktoe, Appalachian ..... Alasmidonta

raveneliana.

U.S.A ................ (NC, TN) .............................. E 563 17.95(f) NA

*******

3. Amend § 17.95(f) by adding critical

habitat for the Appalachian elktoe

(Alasmidonta raveneliana), in the same

alphabetical order as the species occurs

in 17.11(h).

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(f) Clams and snails.

* * * * *

Appalachian elktoe (Alasmidonta

raveneliana)

1. Critical habitat units proposed for

designation as critical habitat are described

below and depicted in the maps that follow,

with the lateral extent of each designated

unit bounded by the ordinary high water

line:

Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules 9551

Unit 1: Macon County and Swain County,

North Carolina—the main stem of the Little

Tennessee River (Tennessee River system),

from the Lake Emory Dam at Franklin, Macon

County, North Carolina, downstream to the

backwaters of Fontana Reservoir in Swain

County, North Carolina.

Unit 2: Jackson County and Swain County,

North Carolina—the main stem of the

Tuckasegee River (Little Tennessee River

system), from the N.C. State Route 1002

Bridge in Cullowhee, Jackson County, North

Carolina, downstream to the N.C. Highway

19 Bridge, north of Bryson City, Swain

County, North Carolina.

9552 Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules

Unit 3: Graham County, North Carolina—

the main stem of the Cheoah River (Little

Tennessee River system), from the Santeetlah

Dam, downstream to its confluence with the

Little Tennessee River.

Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules 9553

Unit 4: Transylvania County, North Carolina—the main stem of the Little River (French Broad River system), from the Cascade

Lake Power Plant, downstream to its confluence with the French Broad River.

9554 Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules

Unit 5: Haywood County, North Carolina—

the main stem of the West Fork Pigeon River

(French Broad River system), from the

confluence of the Little East Fork Pigeon

River, downstream to the confluence of the

East Fork Pigeon River, and the main stem of

the Pigeon River, from the confluence of the

West Fork Pigeon River and the East Fork

Pigeon River, downstream to the N.C.

Highway 215 Bridge crossing, south of

Canton, North Carolina.

Federal Register / Vol. 66, No. 27 / Thursday, February 8, 2001 / Proposed Rules 9555

Unit 6: Yancey County and Mitchell

County, North Carolina, and Unicoi County,

Tennessee—the main stem of the North Toe

River, Yancey and Mitchell Counties, North

Carolina, from the confluence of Big Crabtree

Creek, downstream to the confluence of the

South Toe River; the main stem of the South

Toe River, Yancey County, North Carolina,

from the N.C. State Route 1152 Bridge,

downstream to its confluence with the North

Toe River; the main stem of the Toe River,

Yancey and Mitchell Counties, North

Carolina, from the confluence of the North

Toe River and the South Toe River,

downstream to the confluence of the Cane

River; the main stem of the Cane River,

Yancey County, North Carolina, from the

N.C. State Route 1381 Bridge, downstream to

its confluence with the Toe River; and the

main stem of the Nolichucky River from the

confluence of the Toe River and the Cane

River in Yancey County and Mitchell County,

North Carolina, downstream to the U.S.

Highway 23/19W Bridge southwest of Erwin,

Unicoi County, Tennessee.

2. Within these areas, the primary

constituent elements include:

(i) Permanent, flowing, cool, clean water;

(ii) Geomorphically stable stream and river

channels and banks;

(iii) Pool, riffle, and run sequences within

the channel;

(iv) Sand, gravel, cobble, boulder, and

bedrock substrates with no more than low

amounts of fine sediment;

(v) Moderate to high stream gradient;

(vi) Periodic natural flooding; and

(vii) Fish hosts, with adequate living,

foraging, and spawning areas for them.

Dated: February 1, 2001.

Joseph E. Doddridge,

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 01–3128 Filed 2–7–01; 8:45 am]

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