[Federal Register Volume 66, Number 130 (Friday, July 6, 2001)]
[Rules and Regulations]
[Pages 35547-35566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16866]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AG38


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), designate 
critical habitat for the spruce-fir moss spider (Microhexura 
montivaga), under the Endangered Species Act of 1973, as amended (Act). 
The areas designated as critical habitat include portions of Avery, 
Caldwell, Mitchell, Swain, and Watauga Counties, in North Carolina and 
Sevier and Carter County in Tennessee. The areas designated as critical 
habitat for the spider are within the boundaries of the Great Smoky 
Mountains National Park (GSMNP); the Pisgah National Forest, and the 
Cherokee National Forest; and an area privately owned but is being 
managed by The Nature Conservancy through an agreement with the 
landowner.
    We have revised the proposal to incorporate or address all relevant 
comments and other information received during the comment periods. 
This action comes as a result of a lawsuit filed against us by the 
Southern Appalachian Biodiversity Project and the Foundation for Global 
Sustainability. Section 7(a)(2) of the Act requires that Federal 
agencies must ensure that actions they fund, permit, or carry out are 
not likely to result in the destruction or adverse modification of 
critical habitat. State or private actions, with no Federal 
involvement, would not be affected by this rulemaking action.

DATES: This rule becomes effective on August 6, 2001.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in preparation of this final rule, will be available 
for public inspection, by appointment, during normal business hours at 
the Asheville Field Office, U.S. Fish and Wildlife Service, 160 
Zillicoa Street, Asheville, North Carolina 28801.

FOR FURTHER INFORMATION CONTACT: John Fridell, Fish and Wildlife 
Biologist, at the address above (telephone 828/258-3939, extension 225; 
facsimile 828/258-5330).

SUPPLEMENTARY INFORMATION:

[[Page 35548]]

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)) in length (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), US Forest Service (USFS), and us indicate that reproducing 
populations of the spruce-fir moss spider still survive on Grandfather 
Mountain in North Carolina (Harp 1992; pers. observation 1995; Jane 
Thompson, The Nature Conservancy, pers. comm. 1997); Mount LeConte in 
Tennessee (Coyle 1997); and Mount Buckley (Coyle, pers. comm. 2000) and 
Roan Mountain in North Carolina and Tennessee (Coyle 1999). The Mount 
Mitchell population is believed to be extirpated (Harp 1992), and both 
the Mount Collins and Clingmans Dome populations, if still present, are 
extremely small, with only one spruce-fir moss spider having been found 
at each of these two sites in recent years (Harp 1991, 1992). The 
occurrences of the species on Mount LeConte, Mount Collins, Clingmans 
Dome, and Mount Buckley are all within the boundaries of the GSMNP, 
administered by the NPS. The sites supporting the species on Roan 
Mountain are within the boundaries of the Pisgah National Forest in 
North Carolina and the Cherokee National Forest in Tennessee and are 
managed by the USFS. The area on Grandfather Mountain that still 
supports the spruce-fir moss spider is privately owned and is managed 
by The Nature Conservancy through an agreement with the landowner.
    Recent work by Coyle (1997) indicates that Mount LeConte currently 
supports the healthiest of the surviving populations of the spruce-fir 
moss spider. In his study of the species on Mount LeConte, Coyle (1997) 
recorded the species from four small, separate areas of rock outcrop 
(approximately 0.10 hectare (0.25 acre), 0.15 hectare (0.38 acre), 0.25 
hectare (0.63 acre), and 0.50 hectare (1.25 acres) in size) and 
estimated that the largest three of these areas support a population of 
approximately 5,000 individuals. He estimated that the 0.25-hectare 
site provided a total of approximately 12 square meters (m\2\) (roughly 
133 square feet (sq ft)) of suitable microhabitat, and the 0.15-hectare 
site provided approximately 7 m\2\ (78 sq ft) 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 the 
Fraser fir (Abies fraseri) (Coyle 1981, 1997, 1999; Harp 1991, 1992; 
Service 1998). The portions of the moss mats supporting the spruce-fir 
moss spider are generally from 1 to 4 centimeters (cm) thick (roughly 
0.5 to 1.25 in) 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 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 cm (0.5 to 1 in), 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

[[Page 35549]]

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-centimeter (sq cm) (approximately 1.0-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 association with mosses in the genus 
Dicranodontium. Though Harp (1991, 1992) reported finding the spruce-
fir moss spider on Mount LeConte in mosses identified as Polytrichum 
pallidesetum, Coyle was unable to find the spider on either Mount 
LeConte or Roan Mountain in mosses in this genus. The association 
between the spruce-fir moss spider and mosses in the genus 
Dicranodontium is noteworthy because mosses in this genus are much less 
common than many other rock surface mosses (Coyle 1999).
    While humid, well-drained moss/liverwort mats on inclined, well-
shaded surfaces of rock outcrops and boulders appear to be the optimal 
microhabitat for the spruce-fir moss spider, it has also, on occasion, 
been found--(1) under moss and litter mats at the base of rock outcrops 
(Coyle 1981); (2) under moss on loose rock at the base of rock 
outcrops; (3) in litter/humus under flat rocks lying on the ground in 
well-shaded situations in the vicinity of rock outcrops; and (4) on 
well-drained, well-shaded ground in or under needle and/or heath litter 
and moss in the vicinity of rock outcrops (Coyle 1997). The species has 
also rarely been found in moss mats on tree trunks (Coyle 1981) and 
moss mats on logs (Harp 1992), though Coyle has been unable to find the 
species in either of these habitat types in his recent surveys for the 
species (Coyle 1997, 1999, pers. comm. 2000).
    An ongoing study of spiders of the GSMNP by Coyle and recent 
surveys of the spruce-fir moss spider on Mount LeConte (Coyle 1997) and 
Roan Mountain (Coyle 1999) support earlier findings (Coyle 1981; Harp 
1991, 1992) that the microhabitat of the spruce-fir moss spider is 
virtually restricted to certain areas of rock outcrops and boulders in 
Fraser fir and/or fir-dominated spruce-fir forests. The Fraser fir is 
the only species of fir native to the Southeastern United States (Burns 
and Honkala 1990). In his study of the population of the spruce-fir 
moss spider on Mount LeConte, Coyle (1997) reported finding the species 
``only in stands containing many old (well over 25 years of age) fir 
trees and in areas where patches of fir containing old fir trees 
interface with heath communities.'' In both situations he found the 
species only on, or in the vicinity of, rock outcrops. In his work on 
Roan Mountain, Coyle (1999) found the species only on rock outcrops in 
fir forests or fir-dominated areas of spruce-fir forests. Searches for 
the spruce-fir moss spider in other habitat types have failed to locate 
occurrences of the species (Coyle, in litt. 1991; Coyle 1997, 1999).
    Coyle (1981, 1997) describes the webs of the spruce-fir moss spider 
as silk tubes sandwiched between the interface of the moss mat and 
boulder surface. The tubes are thin-walled and are typically broad and 
flattened, with short side branches. Some of the tubes occasionally 
extend into crevices in the rock or litter (Coyle 1997) or the 
vegetative interior of the moss mat (Harp 1991, 1992).
    The spruce-fir moss spider has not been observed taking prey in the 
wild, nor is there any record of prey having been found in spruce-fir 
moss spider webs. The abundant springtails (small wingless insects in 
the order Collembola) found in moss mats with the spiders provide the 
most likely source of food. The spiders have been observed to take 
springtails in captivity (David Hodge, Louisville Zoological Park, 
pers. comm. 1992).
    Mating behavior has been described in detail (Coyle 1985). Females 
of the spruce-fir moss spider are known to lay eggs in June (Coyle 
1981). The egg sac of the species is thin-walled, nearly transparent, 
and generally contains only 7 to 9 eggs (Coyle 1981). The female 
remains with the egg sac and, when disturbed, will carry the sac with 
her fangs. Coyle (1997) hypothesized that the ability of the female to 
move the egg sac may be useful not only in protecting the eggs from 
predators but also in repositioning the egg sac to protect it from 
microhabitat changes within the web. Development and evaporative water 
loss by early instar (a stage between molts) spiderlings within the egg 
sac are likely dependent on temperature and humidity levels. The 
spiderlings emerge during September (Coyle 1981). It has been estimated 
that it may take at least 2 to 3 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 live for several years.
    Modes of dispersal of spiderlings from the parental moss mats are 
unknown. Ballooning is a possibility since males of Microhexura 
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. Pitfall 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

[[Page 35550]]

beetles, and other spiders. A number of other species of spiders are 
commonly found in the same moss as the spruce-fir moss spider (Service 
1998).

Threats

    The majority of the high-elevation spruce-fir forests of the 
Southeast have suffered extensive changes and declines in size and/or 
vigor during the past century, likely as a result of a number of 
factors, including storm damage, site deterioration due to the logging 
and burning practices of the early 1900s (Peart et al. 1992), 
atmospheric pollution (Johnson et al. 1992), exposure shock (Nicholas 
et al. 1992), climate changes, and other factors not yet fully 
understood. However, the primary threat to, and reason for the recent 
decline of, the spruce-fir moss spider at all of the sites from which 
it has been recorded appears to be associated with the loss of suitable 
moss habitat, due primarily to the loss of mature Fraser firs (Coyle, 
in litt. 1991, 1999; Harp 1991, 1992; Service 1998). The spruce-fir 
moss spider appears to be very sensitive to desiccation and requires 
situations of high and constant humidity. The loss of mature Fraser 
firs, the dominant canopy species in the forest stands where the spider 
has been found, leading to increased light and temperature and 
decreased moisture on the forest floor (resulting in drying out of the 
moss mats), appears to be the major cause for the loss of the spruce-
fir moss spider on Mount Mitchell and the recent decline of the Mount 
Collins, Clingmans Dome, and a portion of the Mount LeConte populations 
(Harp 1991, 1992). It is also likely the major factor limiting the 
species' distribution on Roan Mountain, Grandfather Mountain, and Mount 
Buckley. Mature Fraser firs on all of these mountains have suffered 
extensive mortality in the last few decades.
    The most obvious reason for the loss of the fir appears to be the 
associated 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 type locality for the spruce-fir moss spider) in 1957 
(Speers 1958), though it was likely established at that site as early 
as 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

[[Page 35551]]

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.
    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 spruce-fir moss 
spider, Appalachian elktoe (Alasmidonta raveneliana), Carolina 
heelsplitter (Lasmigona decorata), and rock gnome lichen (Gymnoderma 
lineare). On February 29, 2000, we 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, a 
withdrawal of the existing not prudent determination, together with a 
new proposed critical habitat determination, if prudent. We further 
agreed that if, upon consideration of all available information and 
comments, we determined that designation of critical habitat is prudent 
for the spruce-fir moss spider, we would send a final rule of this 
finding to the Federal Register by July 1, 2001.
    On October 6, 2000, we published a prudency determination and a 
proposed designation of critical habitat for the spruce-fir moss spider 
(65 FR 59798). The proposed rule included maps and a description of all 
areas under consideration for designation as critical habitat for the 
species. On October 10, 2000, we notified appropriate Federal and State 
agencies, local governments, scientific organizations, individuals 
knowledgeable about the species, and other interested parties and 
requested their comments on the proposal. A legal notice that announced 
the availability of the proposed rule and invited public comment was 
published in the following newspapers--News-Topic, Lenoir, North 
Carolina; Watauga Democrat, Boone, North Carolina; Smoky Mountain 
Times, Bryson City, North Carolina; Avery Journal, Newland North 
Carolina; Mitchell News Journal, Spruce Pine, North Carolina; Yancey 
Common Times Journal, Burnsville, North Carolina; Mountain Press, 
Sevierville, Tennessee; and, Elizabethton Star, Elizabethton, 
Tennessee.
    In the proposed rule and associated notifications, all interested 
parties were requested to submit factual reports or information, by 
December 5, 2000, that might contribute to our determination and the 
development of a final rule. On February 12, 2001, we published a 
notice in the Federal Register (66 FR 9806) reopening the comment 
period on the proposed rule and announcing the availability of a draft 
economic analysis for the proposed designation of critical habitat for 
the spider. That notice provided an incorrect date for the closing of 
the reopened comment period, and on February 27, 2001, we published a 
notice (66 FR 12450) correcting the closing date for comments to March 
14, 2001. We notified appropriate agencies, government officials, 
institutions, and other interested parties, by letters dated February 
12, 2001, of the reopening of the comment period and availability of 
the draft economic analysis, and published legal notices in the 
newspapers listed above inviting comments from the public.

Summary of Comments and Recommendations

    We received a total of 22 written comments during the 2 comment 
periods--16 during the initial comment period and 6 during the reopened 
comment period. Written comments were received from 1 Federal agency, 1 
State agency, 2 private organizations, and 17 private individuals. One 
of the respondents provided comments during the initial comment period 
on the proposed rule and additional comments on the draft economic 
analysis during the reopened comment period. Of the 21 respondents, 16 
expressed support for the designation of critical habitat for the 
spruce-fir moss spider, and 5 opposed the designation.
    Following is a summary of the comments received (referred to as 
``issues'' for the purpose of this summary) during the two comment 
periods. Issues of a similar nature have been grouped together. These 
issues and our response to each are presented below.
    Issue 1: Several respondents provided comments supporting the 
designation of critical habitat for the spruce-fir moss spider but 
requested that the Service designate and consider all spruce-fir 
forests (in western North Carolina and eastern Tennessee) above the 
5,400-foot elevation as critical habitat for the species.
    Response: The Act and associated regulations for designating 
critical habitat require us to base our designations on the best 
scientific and commercial information available. When considering areas 
for designation as critical habitat, we are required to focus on the 
principal biological and physical constituent elements (primary 
constituent elements) within the defined area that are essential to the 
conservation of the species (50 CFR 424.12(b)). Based on information 
provided by experts on this species and a review of all of the 
published and unpublished data that we are aware of concerning the 
historic and present distribution, biology, life history, and habitat 
requirements of the spruce-fir moss spider (see ``Background'' 
section), the species is restricted to those areas of fir and fir-
dominated spruce-fir forests containing the primary constituent 
elements as described in this rule. The species has never been recorded 
from other habitat types, including spruce-fir forests without rock 
outcrops, spruce-dominated spruce-fir forests with or without rock 
outcrops, or rock outcrops in spruce-fir forests that do not provide 
suitable moss or liverwort mats. In accordance with the definition of 
critical habitat (see ``Critical Habitat'' section), we can only 
designate unoccupied habitat of the species if, based on the best 
available information, it is determined that such areas are essential 
to the conservation of the species. Because we do not currently have 
any data documenting that these other habitat types are used by the 
spruce-fir moss spider and are essential to the conservation of the 
species, we cannot consider them as critical habitat.
    As we stated in the proposed rule, all of the areas we are 
designating as critical habitat are within what we believe to be the 
occupied range of 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 provide 
the primary constituent elements essential to the life cycle needs of 
the species (see

[[Page 35552]]

``Primary Constituent Elements'' section) and 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. Should 
additional information become available that indicates that other areas 
within the spruce-fir moss spider's historic range are essential to the 
conservation of the species, we may revise the designated critical 
habitat accordingly. Similarly, if new information indicates any of 
these areas should not be included in the critical habitat designation 
because they no longer meet the definition of critical habitat, we may 
revise this final critical habitat designation. If, consistent with 
available funding and program priorities, we elect to revise this 
designation, we will do so through a subsequent rulemaking.
    Issue 2: Several respondents suggested that the designation of all 
spruce-fir forests above 5,400 ft in elevation as critical habitat 
would protect the spruce-fir moss spider's habitat from the effects of 
air pollution and acid rain.
    Response: Evaluating and addressing the potential effects of 
atmospheric pollution and acid rain, or any other threats, on the 
spruce-fir moss spider and its habitat does not require the designation 
of all spruce-fir forests above 5,400 ft in elevation as critical 
habitat. Since before the listing of the spruce-fir moss spider as an 
endangered species, we have been monitoring the results of studies 
conducted by Federal, State, and private researchers and have been 
recommending additional studies to determine the effects that 
atmospheric pollution may have on the health of high-elevation forests 
and associated species. Regardless of whether critical habitat has been 
designated, Federal agencies are required by the Act to evaluate the 
direct and indirect effects of their actions on listed species and 
ensure that their actions are not likely to jeopardize the continued 
existence of listed species. Therefore, any Federal activity that has 
the potential to adversely affect the spruce-fir moss spider is already 
subject to the provisions of the Act.
    As we stated in the proposed and final rules listing the spruce-fir 
moss spider as endangered and in the proposed rule to designate 
critical habitat, we believe that, because of the limited amount of 
suitable habitat available to the spruce-fir moss spider, any activity 
that would significantly affect the habitat of the species would also 
jeopardize the species' continued existence. If data exists, or becomes 
available in the future, that documents that there is a relationship, 
direct or indirect, between atmospheric pollution resulting from the 
operations of, or the issuance of permits by, a Federal agency and the 
decline in spruce-fir moss spider habitat, those actions would be 
subject to the provisions of section 7 of the Act. There is no need to 
designate unoccupied, unsuitable habitat as critical habitat of the 
spruce-fir moss spider to address threats from air pollution and acid 
rain.
    Issue 3: Two respondents indicated that they believe the 
designation of all spruce-fir forest habitat above 5,400 ft in 
elevation in western North Carolina and eastern Tennessee, including 
that on Mount Mitchell (which historically supported the spruce-fir 
moss spider), is necessary for the conservation of the spruce-fir moss 
spider.
    Response: We do not believe that such an area would meet the 
definition of critical habitat (see the Critical Habitat section for 
detailed discussion of how we determine what meets the definition of 
critical habitat). Because we do not currently have any data 
documenting that all spruce-fir forest habitat types above 5,400 ft in 
elevation in western North Carolina and eastern Tennessee provide 
suitable habitat for the spruce-fir moss spider or are essential to the 
conservation of the species, we cannot consider all spruce-fir forests 
as critical habitat of the species. The Mount Mitchell population of 
the spruce-fir moss spider is, based on the best available information, 
believed to be extirpated (see ``Background'' section) due to the loss 
of suitable habitat for the species on Mount Mitchell (Harp 1992). 
Mount Mitchell does not provide the primary constituent elements 
necessary to support the species. Further, the recovery plan for the 
spruce-fir moss spider (Service 1998) states that the species will be 
considered for delisting (recovered) when there exists a total of six 
distinct, viable populations of the species that meet the criteria 
outlined in the recovery plan. Surveys by Harp (1991 and 1992) and 
Coyle (1997 and 1999) indicate that there are currently six surviving 
populations of the spruce-fir moss spider--the Mount LeConte, Clingmans 
Dome, Mount Buckley, Mount Collins, Roan Mountain, and Grandfather 
Mountain populations (see ``Background'' section). The areas that we 
are designating as critical habitat in this rule include habitat for 
each of these populations. Because, based on the most recent data, the 
species and suitable habitat for the species are still present, albeit 
limited, in each of these areas, we considered these areas as the most 
likely sites for focusing conservation efforts for maintaining and 
recovering the species. However, as we previously stated, should 
additional information become available that indicates that other areas 
within the spruce-fir moss spider's historic range are essential to the 
conservation of the species, we may revise the designated critical 
habitat accordingly. Similarly, if new information indicates any of 
these areas should not be included in the critical habitat designation 
because they no longer meet the definition of critical habitat, we may 
revise this final critical habitat designation. If, consistent with 
available funding and program priorities, we elect to revisit 
designations, we will do so through a subsequent rulemaking.
    Issue 4: One respondent stated that they believed the area listed 
to be included under the critical habitat designation is overly broad 
and that the Service failed to show that each area to be designated has 
the primary constituent elements essential for the conservation of the 
spruce-fir moss spider. As evidence of this, they quoted the following 
statements from the proposed rule:

    We [the Service] did not map critical habitat in sufficient 
detail to exclude lands unlikely to contain all of the primary 
constituent elements essential for the conservation of the spruce-
fir moss spider. Consequently, the areas we are proposing as 
critical habitat include areas of unsuitable habitat * * * do not 
provide the habitat or microhabitat required by the spider.

    Response: Based on the best information currently available to us 
concerning the distribution and habitat requirements of the spruce-fir 
moss spider (see ``Background'' section), all of the areas that we are 
designating as critical habitat for the spruce-fir moss spider 
currently support occurrences of the species and, based on survey 
reports and other information provided by species experts and as 
evidenced by the species' presence in these areas, contain the primary 
constituent elements, as described in this and the proposed rule, 
necessary to fulfill the life cycle needs of spruce-fir moss spider and 
essential to the conservation of the species. However, we did, and do, 
acknowledge that there are also habitat types within the mapped 
critical habitat boundaries that do not contain the primary constituent 
elements. Our regulations (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). These regulations 
also state that when several habitat areas are located in proximity to 
one another,

[[Page 35553]]

an inclusive area may be designated as critical habitat. Because of the 
patchiness and small size (see ``Background'' section) of the areas 
providing suitable habitat for the spruce-fir moss spider (those areas 
containing the primary constituent elements), their proximity to one 
another, and the requirement that we use reference points and lines as 
found on standard topographic maps, we elected to designate an 
inclusive area. As a result, there are also areas (habitat types) 
within the mapped critical habitat boundaries that do not, based on the 
best available information, provide habitat for the spruce-fir moss 
spider. Finally, existing human-constructed features and structures 
within the critical habitat boundary, such as buildings, powerlines, 
roads, and others not currently containing one or more of the primary 
constituent elements, are not considered critical habitat: Therefore, 
Federal activities in these areas would not trigger a section 7 
consultation.
    Issue 5: One respondent stated that the Service places the blame 
for the spider's decline exclusively on the balsam woolly adelgid, 
rather than acknowledging the fact that air pollution and acid rain are 
devastating spruce-fir forests and the spruce-fir moss spider. The 
respondent stated that the Service is ignoring the problems associated 
with air pollution and indicated that the Service should require 
consultation on the effects of air pollution on the spruce-fir moss 
spider.
    Response: We identified the loss of the high-elevation Fraser fir, 
the dominant canopy species in the forest stands sheltering rock 
outcrops supporting known occurrences, present and historic, of the 
spruce-fir moss spider, as the most likely cause of the recent decline 
of the species (see ``Background'' section above). We further 
identified the balsam woolly adelgid (a nonnative insect) as a primary 
factor contributing to the massive die-off of the Fraser fir during the 
last few decades on the mountain peaks known to support, or to have 
historically supported, occurrences of the spruce-fir moss spider (we 
have changed this statement in this rule to say that balsam woolly 
adelgid infestations are the most obvious cause of the fir mortality). 
The extensive mortality of the Fraser fir throughout the Southern 
Appalachian Mountains due to infestations of the balsam woolly adelgid 
is well documented. However, we also listed numerous other factors that 
are not as easily understood, including atmospheric pollution, which 
may also have contributed to the decline in the size and vigor of 
spruce-fir forest stands in the Southeast and/or may pose a threat to 
surviving occurrences of the spruce-fir moss spider.
    While we agree that there is evidence that implicates atmospheric 
pollution as a possible factor contributing to the decline of high-
elevation forest health, we are not currently aware of any data that 
have yet firmly established a cause-and-effect mechanism between 
atmospheric pollution and the decline in spruce-fir forests in the 
Southern Appalachian Mountains and, more specifically, the loss of 
spruce-fir moss spider habitat. However, we are concerned about the 
possible effect that atmospheric pollution may be having on the health 
of the high-elevation forests and the recovery of the spruce-fir moss 
spider. We welcome any supporting data and strongly encourage, and to 
the maximum extent feasible will continue to contribute to, studies 
that help to identify factors threatening the spruce-fir moss spider 
and measures for alleviating these threats. We will also continue to 
work with other Federal agencies to help ensure that their actions are 
in compliance with section 7 of the Act, to encourage them to evaluate 
their activities and consult with us on those that are likely to 
adversely affect the spruce-fir moss spider and its designated critical 
habitat, and to identify and implement actions to further the 
conservation of this and other federally listed species.
    Issue 6: One respondent stated that the benefits to public health, 
recreation, tourism, the local economy, commercial and recreational 
fisheries, global climate change, and the preservation of biological 
and genetic resources that will result from improvements in air quality 
due to the designation of critical habitat of the spruce-fir moss 
spider need to be addressed in the economic analysis for the 
designation of critical habitat for the spider.
    Response: When evaluating the economic costs and benefits of 
designating critical habitat, we consider the incremental economic 
impacts of critical habitat designation above the impacts resulting 
from listing and other laws. As discussed in our response to Issue 2, 
above, if data exist, or become available in the future, that indicate 
that any Federal action or activity has the potential to adversely 
affect, directly or indirectly, habitat of the spruce-fir moss spider, 
that action is/would be subject to the provisions of section 7 of the 
Act regardless of whether critical habitat has been designated. Because 
of the status of the spruce-fir moss spider and its habitat, any 
Federal activity that is likely to significantly affect the habitat of 
the species would also jeopardize the species' continued existence and 
would therefore already be prohibited. Accordingly, we do not believe 
that the designation of critical habitat will provide any additional 
benefit for addressing the effects of air pollution, or any other 
Federal activity, that does not already exist as a result of listing 
the spruce-fir moss spider as an endangered species. Hence, as 
discussed in the economic analysis, designation of critical habitat for 
the spruce-fir moss spider does not increase or change the existing 
regulatory burden posed by the listing of the species, and we do not 
anticipate that there will be any significant economic impact, 
beneficial or negative, likely to occur from the designation of 
critical habitat for this species.
    Issue 7: One respondent stated that the Service has no business 
declaring private property as critical habitat and implied that the 
designation would affect private property rights. This same respondent 
asked if we planned to compensate landowners for the loss of the use of 
their land. Another respondent asked how many people will be put out of 
work, how many peoples' private property rights will be violated, and 
how many people will be denied access to recreation areas.
    Response: The Act requires us to designate critical habitat to the 
extent prudent and determinable, based 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. The definition of critical habitat (see 
``Critical Habitat'' section) does not differentiate between areas that 
are privately owned and those that are publically owned. We may exclude 
areas essential to the conservation of the species from critical 
habitat designation only when the benefits of excluding those areas 
outweigh the benefits of including the areas within the critical 
habitat designation, provided the exclusion will not result in the 
extinction of the species. We cannot exclude areas based on 
landownership alone. All of the areas being designated as critical 
habitat for the spider occur on public land (national park and national 
forest land), with the exception of the areas in Unit 4, which are on 
Grandfather Mountain. Grandfather Mountain is privately owned, and the 
areas in this unit that are designated as critical habitat are managed 
by The Nature Conservancy through conservation easements donated by the 
landowner (see ``Summary'' section and ``Distribution, Habitat, and 
Life History''

[[Page 35554]]

portion of the ``Background'' section). We have determined that 
conservation of the areas on Grandfather Mountain that support 
occurrences of the spruce-fir moss spider provide the primary 
constituent elements and are essential to the conservation of the 
species. As discussed in the draft economic analysis, the primary 
activities within this unit are recreational activities (e.g., hiking, 
sightseeing, primitive camping). None of the existing or reasonably 
foreseeable activities within this unit require a Federal permit or 
involve Federal funding, so no regulations associated with the 
designation of critical habitat will affect existing or likely future 
planned activities within this unit.
    The only regulatory consequence of this designation of critical 
habitat is that Federal agencies must consult with us before 
undertaking actions, issuing permits, or providing funding for 
activities that might destroy or adversely modify critical habitat (see 
``Effects of Critical Habitat Designation'' section). This regulation 
has no regulatory impact on private landowners taking actions on their 
land that do not involve Federal funding or authorization. Because the 
spruce-fir moss spider is already listed as endangered, Federal 
agencies are already required to consult with us on any of their 
actions that may affect the spider and to ensure that their actions do 
not jeopardize the species' continued existence, regardless of whether 
critical habitat has been designated. In addition, since the spider was 
listed as endangered in 1995, it is has been protected from ``take'' 
throughout its range, without critical habitat having been designated. 
``Take'' is defined to include harass, harm, pursue, hunt, shoot, 
wound, kill, trap, or collect; or to attempt any of these. We believe 
that the designation of critical habitat for the spruce-fir moss spider 
will not result in any significant additional regulatory burden on 
landowners or affect the use of property, private or Federal.
    Issue 8: One respondent stated that the government should have to 
prove that the value of the spider is greater than the use of the land.
    Response: In the Act, Congress declared that species of fish, 
wildlife, and plants in the United States in danger of, or threatened 
with, extinction are of esthetic, ecological, educational, historical, 
recreational, and scientific value to the Nation and its people. As 
discussed in our response to Issue 6, above, and in the economic 
analysis assessing the economic effects of critical habitat designation 
for the spruce-fir moss spider, the designation of critical habitat for 
this species will not result in any additional regulatory burden on 
landowners or affect the use of their property.
    Issue 9: One commenter claimed that the evidence we provided for 
our proposed designation of critical habitat for the spruce-fir moss 
spider was insufficient. Specifically, the commenter claimed that we 
failed to provide new data to justify a reversal in position from the 
1995 determination that designation of critical habitat was not 
prudent, relying instead on case law.
    Response: Our 1995 decision not to designate critical habitat was 
based on a determination that, despite sufficient scientific 
information from which to demonstrate the existence of suitable 
habitat, designation would not be prudent. Our current proposal 
identifying suitable habitat for designation relied on the same 
scientific and commercial information that was available in 1995, 
augmented by at least three additional studies (Coyle 1997, 1999; 
Service 1998). Taken together, they represent the best scientific and 
commercial information available. Our change in position between 1995 
and now is not based on any new evidence that emerged since the 
original determination, but rather on a change in the legal standards 
for evaluating the existing evidence.
    Specifically, we have determined that under the Conservation 
Council of Hawaii and Natural Resources Defense Council decisions cited 
above, the information available to us in 1995 did not support a ``not 
prudent'' finding. First, the ``increased threat'' rationale, based on 
the possibility of collection or other disturbance, was not supported 
by evidence specific to this or similarly situated species as required 
by Conservation Council of Hawaii v. Babbitt, 2 F. Supp.2d 1280, 1284 
(D. Hawaii 1998). Second, we have determined that the possible 
educational or informational benefits of designating critical habitat 
do not allow us to state, in the absence of evidence to the contrary, 
that designation would not benefit the species. Natural Resources 
Defense Council v. U.S. Department of the Interior, 113 F.3d 1121, 1125 
(9th Cir. 1997).
    Issue 10: One commenter claimed that we lack the authority under 
the Commerce Clause of the United States Constitution to designate 
critical habitat for, or even list, the spruce-fir moss spider, because 
the species is located only in a few counties and there is no evidence 
that it has ever constituted an article of commerce or attracted 
interstate visitors.
    Response: We believe that, contrary to the commenter's opinion, we 
have the authority under the Commerce Clause to designate critical 
habitat for the spruce-fir moss spider. In Gibbs v. Babbitt, 214 F. 3d 
483 (4th Cir. 2000), the Fourth Circuit held that we had the authority 
under the Commerce Clause to issue a regulation under the Act limiting 
taking of the endangered red wolf, because (1) the taking of red wolves 
implicated a variety of commercial activities and was closely connected 
to several interstate markets, and (2) the regulation in question was 
an integral part of the overall Federal scheme to protect endangered 
species, thereby conserving valuable wildlife resources important to 
the welfare of our country.
    Our authority to designate critical habitat for the spruce-fir moss 
spider is consistent with the Gibbs decision. First, even though the 
spider may not have the same commercial importance as the red wolf at 
issue in Gibbs, there is ample evidence that the spider is important to 
interstate commerce--it is located in numerous counties in two 
different States (North Carolina and Tennessee) and scientists from 
universities in both States, as well as from the NPS and the American 
Museum of Natural History, have come to the region to research the 
species. Second, as with the regulation that limits taking of the red 
wolf that was upheld in Gibbs, the designation of critical habitat for 
the spruce-fir moss spider is ``an essential part of a larger 
regulation of economic activity, in which the regulatory scheme could 
be undercut unless the intrastate activity were regulated.'' Gibbs, 214 
F. 3d at 497, citing United States v. Lopez, 514 U.S. 549 (1995). As 
the court further stated in Gibbs, the designation of critical habitat 
for the spruce-fir moss spider ``may be insubstantial by some measures, 
but that does not invalidate a regulation * * * that seeks conservation 
not only of any single animal, but recovery of the species as a 
whole.'' Id. at 497-98. The regulation must be ``evaluated against the 
overall congressional goal of restoring * * * endangered species 
generally.'' Id. at 498. Measured against this goal, the listing and 
designation of critical habitat for the spruce-fir moss spider are 
consistent with the Commerce Clause.

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

[[Page 35555]]

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 are essential for the 
conservation of the species. Areas outside the geographical 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 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 and 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 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 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 geographical 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 should 
become 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 the essential life cycle needs of the species, then the 
area should not be included in the critical habitat designation. Within 
the geographical 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), necessary to provide the 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 the designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographical area occupied by the species.
    Our 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 us represent the best scientific and 
commercial data available. It requires our 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 peer-reviewed 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 the 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, it should be understood 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 the 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 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 areas of critical habitat described below constitute our best 
assessment of the areas needed for the conservation and recovery of the 
spruce-fir moss spider in accordance with the goals outlined in our 
recovery plan for the species (Service 1998) and are based on the best 
scientific and commercial information currently available to us 
concerning the species' known present and historic range, habitat, 
biology, and threats. All of the areas we are designating as critical 
habitat are within what we believe to be the geographical 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 provide 
the primary constituent elements essential to the life cycle needs of 
the species (see ``Primary Constituent Elements'' section) and 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 or habitat types within the spruce-fir moss spider's 
historic range are essential to the conservation of the species, we 
will revise the designated critical habitat for the spruce-fir moss 
spider accordingly.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
the

[[Page 35556]]

regulations at 50 CFR 424.12, in determining which areas to propose as 
critical habitat we are required to base critical habitat 
determinations on the best scientific and commercial data available and 
to consider those physical and biological features (primary constituent 
elements) that are essential to the conservation of the species and 
that may require special management considerations and protection. Such 
requirements include, but are not limited to: space for individual and 
population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, and rearing of offspring; 
and habitats that are protected from disturbance or are representative 
of the historic geographical and ecological distributions of a species.
    When considering areas for designation as critical habitat, we are 
required to focus on the principal biological or physical constituent 
elements within the defined area that are essential to the conservation 
of the species (50 CFR 424.12(b)). Although additional information is 
needed to better define the habitat requirements of the species, 
particularly the microhabitat requirements, based on the best available 
information, the primary constituent elements essential for the 
conservation of the spruce-fir moss spider are:
    1. Fraser fir or fir-dominated spruce-fir forests at and above 
1,646 m (5,400 ft) in elevation.
    2. Moderately thick and humid, but not wet, moss (species in the 
genus Dicranodontium, and possibly Polytrichum) and/or liverwort mats 
on rock surfaces that are adequately sheltered from the sun and rain 
(by overhang and aspect) and include a thin layer of humid soil and/or 
humus between the moss and rock surface.
    As a result of the massive Fraser fir die-offs and associated loss 
of moss habitat for the spruce-fir moss spider, the remaining areas of 
suitable habitat for the spider exist only in scattered patches, 
ranging from a single rock outcrop to scattered rock outcrop sites (see 
``Background'' section). Due to the patchiness and small size of the 
areas providing suitable habitat for the spruce-fir moss spider, we 
have elected to designate an inclusive area on each of the mountain 
peaks that still provide 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 land that is not likely to contain all of the primary 
constituent elements essential for the conservation of the spruce-fir 
moss spider. Consequently, the areas we are designating as critical 
habitat also 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 with effects 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, 
regardless of the activity's location in relation to designated 
critical habitat, will require a consultation with us, as required 
under the provisions of section 7 of the Act (see ``Effects of Critical 
Habitat Designation'' section).

Critical Habitat Designation

    Designated critical habitat includes spruce-fir moss spider habitat 
throughout the species' existing range in the United States. Lands 
designated as critical habitat have been divided into four critical 
habitat units. Areas designated 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 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. 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

[[Page 35557]]

require a Federal permit, authorization, or funding.
    Section 7(a)(2) of the Act and regulations at 50 CFR 402.10 require 
Federal agencies to consult with us on any action that is likely to 
result in the destruction or adverse modification of designated 
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.
    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 consult with us on any action that 
may affect a listed species and to ensure that actions they authorize, 
fund, or carry out do not jeopardize the continued existence of 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 or fir-dominated 
forest canopy that is sheltering moss mats or that could cause 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 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.
    Economic effects caused by listing the spruce-fir moss spider as a 
federally protected endangered species, and by other statutes, are the 
baseline against which the effects of a critical habitat designation 
are evaluated. The economic analysis must then examine the incremental 
economic and conservation benefits and effects of the critical habitat 
designation. Economic effects are measured as changes in national 
income, regional jobs, and household income. An analysis of the 
economic effects of the proposed designation of critical habitat for 
the spruce-fir moss spider was prepared (Industrial Economics, 
Incorporated, 2001) and made available for public review and comment 
(February 12, 2001, through March 14, 2001; 66 FR 9806 and 66 FR 
12450). The final analysis, which reviewed and incorporated public 
comments, concluded that no significant economic impacts, negative or 
beneficial, are expected from the designation of critical habitat for 
the spruce-fir moss spider above and beyond those already imposed by 
the listing of the species.
    The most likely economic effect of the designation of critical 
habitat for the spruce-fir moss spider is associated with potential 
confusion and uncertainty of the implications of the critical habitat 
designation resulting in additional time spent on consultations between 
other Federal agencies and us. However, this effect is expected to be 
insignificant and for a short term, ranging from a total incremental 
impact of $300 to $1,000 for the first few section 7 consultations 
following the designation.
    A copy of the final economic analysis is included in our 
administrative record and may be obtained by contacting the U.S. Fish 
and Wildlife Service, Asheville Field Office, 160 Zillicoa Street, 
Asheville, North Carolina 28801.

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) This rule will not have an annual economic effect of $100 
million or more, or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government. The spruce-fir 
moss spider was listed as an endangered species in 1995. Since that 
time, we have conducted, and will continue to conduct, formal and 
informal section 7 consultations with other Federal agencies to ensure 
that their actions would/will 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

[[Page 35558]]

action or authorized action that could potentially cause an adverse 
modification of the critical habitat would currently be considered as 
``jeopardy'' to the species under the Act.
    Accordingly, we do not expect the designation of areas as critical 
habitat within the geographical range occupied by the species to have 
any incremental impacts on what actions may or may not be conducted by 
Federal agencies or non-Federal persons that receive Federal 
authorization or funding. Non-Federal persons who do not have a Federal 
``sponsorship'' of their actions are not restricted by the designation 
of critical habitat (however, they continue to be bound by the 
provisions of the Act concerning ``take'' of the species).
    (b) This rule will not create inconsistencies with other agencies' 
actions. Federal agencies have been required to ensure that their 
actions do not jeopardize the continued existence of the spruce-fir 
moss spider since its listing in 1995. As shown in Table 1 (below), no 
additional effects on agency actions are anticipated to result from 
this critical habitat designation. We will continue to review this 
action for any inconsistencies with other Federal agency actions.

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

    (c) This rule 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 designated critical habitat.
    (d) OMB has determined that this rule will raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

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

    In the economic analysis (required under section 4 of the Act), we 
determined that the designation of critical habitat will not have a 
significant effect on a substantial number of small entities. As 
discussed in the ``Regulatory Planning and Review'' section above, this 
rule is not expected to result in any restrictions in addition to those 
currently in existence for areas of designated critical habitat. 
Therefore, we certify that the designation of critical habitat for the 
spruce-fir moss spider will not have a significant economic impact on a 
substantial number of small entities, and no regulatory flexibility 
analysis is required.

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

    In the economic analysis, we determined that the designation of 
critical habitat will not 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.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
As this rule is not expected to significantly affect energy supplies, 
distribution, or use, this action is not a significant energy action 
and no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    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 obligations on State or local governments.

[[Page 35559]]

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This rule 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 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, this 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 or no 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 has 
reviewed this final determination. We have made every effort to ensure 
that this 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).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
understand that federally recognized Tribes must be related to on a 
Government-to-Government basis. We are not aware of any Tribal lands 
essential for the conservation of the spruce-fir moss spider. 
Therefore, we are not designating critical habitat for the spruce-fir 
moss spider on Tribal lands.

References Cited

    A complete list of all references cited in this 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.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


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


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 35560]]



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


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


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (g) Arachnids.

Spruce-Fir Moss Spider (Microhexura montivaga)

    1. Critical habitat units and their ownership are described below 
and depicted in the following maps.

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[[Page 35561]]

[GRAPHIC] [TIFF OMITTED] TR06JY01.000

BILLING CODE 4310-55-C

[[Page 35562]]

    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, 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.

BILLING CODE 4310-55-P

[[Page 35563]]

[GRAPHIC] [TIFF OMITTED] TR06JY01.001


BILLING CODE 4310-55-C

[[Page 35564]]

    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 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.

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[[Page 35565]]

[GRAPHIC] [TIFF OMITTED] TR06JY01.002


BILLING CODE 4310-55-C

[[Page 35566]]

    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.

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

    Dated: June 28, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-16866 Filed 7-5-01; 8:45 am]
BILLING CODE 4310-55-P