[Federal Register Volume 72, Number 119 (Thursday, June 21, 2007)]
[Proposed Rules]
[Pages 34215-34224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11897]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU87


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Five Endangered and Two Threatened Mussels in Four 
Northeast Gulf of Mexico Drainages

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; reopening of comment period, 
availability of draft economic analysis and revised proposed critical 
habitat units, and announcement of public hearings.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
reopening the comment period on our proposed designation of critical 
habitat under the Endangered Species Act of 1973, as amended (Act) for 
seven southeastern U.S. mussels. On June 6, 2006, we published our 
original proposed rule to designate critical habitat for five 
endangered mussel species--fat threeridge, shinyrayed pocketbook, Gulf 
moccasinshell, Ochlockonee moccasinshell, and oval pigtoe--as well as 
two threatened species--Chipola slabshell and purple bankclimber (in 
this document, we refer to all seven species collectively as the seven 
mussels). We propose the following changes to our original proposed 
rule: (1) We are enlarging two previously proposed critical habitat 
units, and (2) we are adding one of the mussels to the list of species 
associated with one of our previously proposed units. We also have 
corrected inadvertent oversights in our original proposal. The draft 
economic analysis estimates potential future impacts associated with 
conservation efforts for the seven mussels in areas proposed for 
designation to be $42.7 million to $67.9 million over the next 20 years 
(undiscounted). The present value of these impacts is $33.0 million to 
$52.1 million, using a discount rate of three percent (2.21 million to 
3.49 million annually), or $24.7 million to $38.8 million, using a 
discount rate of seven percent (2.31 million to 3.63 million annually). 
All dollar amounts include those costs coextensive with listing. We now 
announce public hearings and reopen the comment period to allow all 
interested parties an opportunity to comment simultaneously on the 
original proposed rule, the newly available associated draft economic 
analysis, and the changes to the original proposed rule included in 
this document. If you previously submitted comments, you need not 
resubmit them; they are already part of the public record that we will 
consider in preparing our final rule. With the inclusion of our newly 
proposed river lengths, our proposed critical habitat area totals 
1,908.5 river kilometers (river km) (1,185.9 river miles (river mi)). 
Aside from the amendments we describe in this document, our original 
proposed rule of June 6, 2006, stands.

DATES: We will accept public comments until August 6, 2007. We will 
hold three public hearings, on July 9, 10, and 11, 2007, on the 
proposed critical habitat designation and the draft economic analysis. 
See ``Public Hearings'' under SUPPLEMENTARY INFORMATION for details.

ADDRESSES: If you wish to comment, you may submit your comments and 
information concerning this proposal by any one of the following 
methods:

[[Page 34216]]

    1. Mail or hand-deliver written comments and information to the 
Field Supervisor, U.S. Fish and Wildlife Service, Panama City Field 
Office, 1601 Balboa Avenue, Panama City, FL 32405.
    2. Send comments by electronic mail (e-mail) to 
[email protected]. Please see the ``Public Comments Solicited'' 
under SUPPLEMENTARY INFORMATION for additional information about this 
method.
    3. Provide oral or written comments at any of the public hearings.
    4. Fax your comments to 850-763-2177.
    5. Submit comments via the Federal Rulemaking portal at http://www.regulations.gov. Follow the instructions on the site.
    Please see the ``Public Comments Solicited'' section below for more 
information about submitting comments or viewing our received 
materials.

FOR FURTHER INFORMATION CONTACT: Gail Carmody, Field Supervisor, U.S. 
Fish and Wildlife Service, Panama City, FL 32405; telephone 850-769-
0552; facsimile 850-763-2177. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Hearings

    We will hold three public hearings on the proposed critical habitat 
designation and the draft economic analysis. At each location, an 
information session from 5 p.m. to 6:30 p.m. will precede the hearing. 
The public hearing will then run from 6:30 p.m. to 8:30 p.m.:
    (1) July 9, 2007, Elizabeth Bradley Turner Center, Auditorium, 
Columbus State University, 4225 University Avenue, Columbus, GA 31807.
    (2) July 10, 2007, Academic Auditorium, Room 150, Albany State 
University, 504 College Drive, Albany, GA 31705.
    (3) July 11, 2007, Economic and Workforce Development, Building 38, 
Tallahassee Community College, 444 Appleyard Drive, Tallahassee, FL 
32304.

Public Comments Solicited

    We intend that any final action resulting from this proposal be as 
accurate and as effective as possible. Therefore, we solicit comments 
or suggestions from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons why habitat should or should not be designated as 
critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.), 
including whether the benefit of designation would outweigh threats to 
the species caused by designation such that designation of critical 
habitat is prudent;
    (2) Specific information on the amount and distribution of habitat 
for the seven mussels, particularly what areas we should include in our 
designations that the species occupied at the time of listing that 
contain features that are essential for the conservation of the species 
and why; and what areas the species did not occupy at the time of 
listing are essential to the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities, and the benefits of including or excluding 
areas that exhibit these impacts;
    (5) Information from the Department of Defense to assist the 
Secretary of the Interior in evaluating critical habitat on lands 
administered by or under the control of the Department of Defense based 
on any benefit provided by an Integrated Natural Resources Management 
Plan (INRMP) to the conservation of the seven mussels; and information 
regarding impacts to national security associated with the proposed 
designation of critical habitat;
    (6) Whether the draft economic analysis identifies all State and 
local costs attributable to the proposed critical habitat designation, 
and information on any costs that we could have inadvertently 
overlooked;
    (7) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and likely regulatory changes 
imposed as a result of the designation of critical habitat;
    (8) Whether the draft economic analysis correctly assesses the 
effect on regional costs associated with any land use controls that may 
derive from the designation of critical habitat;
    (9) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, and in particular, any 
impacts on small entities or families; and other information that would 
indicate that the designation of critical habitat would or would not 
have any impacts on small entities or families;
    (10) Whether the draft economic analysis appropriately identifies 
all costs and benefits that could result from the designation;
    (11) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments;
    (12) Whether the benefits of exclusion in any particular area 
outweigh the benefits of inclusion under section 4(b)(2) of the Act; 
and
    (13) Economic data on the incremental effects that would result 
from designating any particular area as critical habitat.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES). 
Please submit comments electronically to [email protected]. 
Please also include ``Attn: 7 mussels critical habitat'' in your e-mail 
subject header and your name and return address in the body of your 
message. If you do not receive a confirmation from the system that we 
have received your electronic message, contact us directly by calling 
the Panama City U.S. Fish and Wildlife Service Office at 850-769-0552. 
Please note that at the termination of the public comment period we 
will close out the e-mail address [email protected].
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    Copies of the draft economic analysis and the proposed rule for 
critical habitat designation are available on the Internet at http://www.fws.gov/panamacity or from the Panama City U.S. Fish and Wildlife 
Service Office at the address and contact numbers above.
    Our final designation of critical habitat will take into 
consideration all comments and any additional information we received 
during both comment periods. If you submitted previous comments and 
information during the initial comment period on the June 6, 2006, 
proposed rule (71 FR 32746), you need not resubmit them, because they 
are currently part of our record and we will consider them in our 
development of our final rule. On the basis of public comment on this 
analysis and on the critical habitat proposal, and

[[Page 34217]]

the final economic analysis, we may, during the development of our 
final determination, find that areas proposed are not essential, are 
appropriate for exclusion under section 4(b)(2) of the Act, or are not 
appropriate for exclusion. We may exclude an area from critical habitat 
if we determine that the benefits of such exclusion outweigh the 
benefits of including a particular area as critical habitat, unless the 
failure to designate such area as critical habitat will result in the 
extinction of the species. We may exclude an area from designated 
critical habitat based on economic impacts, national security, or any 
other relevant impact.

Background

    On June 6, 2006, we published a proposed rule to designate a total 
of 1,864 river km (1,158 river mi) in Alabama, Florida, and Georgia as 
critical habitat for seven mussels (71 FR 32746). These seven mussels 
are the fat threeridge (Amblema neislerii), shinyrayed pocketbook 
(Lampsilis subangulata), Gulf moccasinshell (Medionidus penicillatus), 
Ochlockonee moccasinshell (Medionidus simpsonianus), oval pigtoe 
(Pleurobema pyriforme), Chipola slabshell (Elliptio chipolaensis), and 
purple bankclimber (Elliptoideus sloatianus). For more information 
about each of these species, and our previous Federal actions 
concerning them, see our original proposed critical habitat rule (June 
6, 2006; 71 FR 32746). We will submit for publication in the Federal 
Register a final critical habitat designation for the seven mussels on 
or before October 31, 2007.
    Critical habitat is defined in section 3 of the Act as the specific 
areas within the geographic area occupied by a species, at the time it 
is listed in accordance with the Act, on which are found those physical 
or biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographic area occupied by a species at the 
time it is listed, upon a determination that such areas are essential 
for the conservation of the species. Federal agencies proposing actions 
affecting areas designated as critical habitat must consult with us on 
the effects of their proposed actions, pursuant to section 7(a)(2) of 
the Act.

Changes to the Proposed Rule

    We announce the following changes to the June 6, 2006, proposed 
rule (71 FR 32746). We propose to modify the boundaries of 2 of the 11 
proposed critical habitat units (Unit 2--Chipola River, and Unit 8--
Apalachicola River) based upon new information we received from the 
States of Alabama and Florida during our first public comment period. 
We are also adding the fat threeridge to the list of species associated 
with proposed Unit 7 (Lower Flint River, Georgia), based on new 
information.
    In the original proposed rule, we delineated the full extent of the 
known post-1990 live occurrence records for the seven mussels in 
flowing streams as critical habitat. Barriers to the movement of 
potential fish hosts of the larval life stage of the mussels (dams and 
salt water) divided the collective extent of occurrence for the 7 
species into 11 units, and we proposed each of these 11 units as 
critical habitat for whichever of the seven species occupy that 
particular unit. The upstream boundary of a unit in an occupied stream 
was the first perennial tributary confluence or first permanent barrier 
to fish passage (such as a dam) upstream of the upstream-most current 
occurrence record. The downstream boundary of a unit in an occupied 
stream was the mouth of the stream, the upstream extent of tidal 
influence, or the upstream extent of an impoundment, whichever comes 
first, downstream of the downstream-most occurrence record.

Chipola River (Unit 2) Proposed Changes

    By letter dated July 28, 2006, the Wildlife and Freshwater 
Fisheries Division of the Alabama Department of Conservation and 
Natural Resources (ADCNR) provided survey data for the shiny-rayed 
pocketbook and the oval pigtoe within the Chipola River Basin in 
Alabama. In June 2006, ADCNR surveyors found live oval pigtoes and a 
single live shiny-rayed pocketbook at a site in Big Creek approximately 
3.7 river km (2.3 river mi) upstream of the proposed boundary for 
critical habitat Unit 2. ADCNR surveyors also found live oval pigtoes 
and shiny-rayed pocketbooks at three sites in Cowarts Creek, which we 
did not include in the originally proposed Unit 2. These sites are 
located in Houston County, Alabama, in stream segments that are 
contiguous with the stream segments we proposed for inclusion in Unit 
2--Chipola River.
    The mussel survey data provided by ADCNR show that the extent of 
occurrence of the listed mussels in the Chipola River Basin includes 
Cowarts Creek and an additional portion of Big Creek that we did not 
include within our originally proposed boundaries of critical habitat 
Unit 2. These stream reaches are perennially flowing streams that 
support two of the seven mussels and are contiguous for the movement of 
potential fish hosts within Unit 2. Therefore, consistent with the 
methods we employed in the original proposal, we propose to revise the 
boundaries of Unit 2 to include an additional portion of Big Creek (5.1 
river km (3.2 river mi)) and a portion of Cowarts Creek (33.5 river km 
(20.8 river mi)). With these revisions, the total stream length we 
propose for Unit 2 increases from 190.0 river km (118.1 river mi) to 
228.7 river km (142.1 river mi). Unit 2 will now include the main stem 
of the Chipola River and seven of its tributaries. Please see the 
``Proposed Regulation Promulgation'' section below for a complete 
description of Unit 2.

Apalachicola River (Unit 8) Proposed Changes

    By letter dated August 4, 2006, the Florida Fish and Wildlife 
Conservation Commission (FFWCC) provided survey data for the fat 
threeridge and purple bankclimber within the Apalachicola River Basin 
in Florida. On June 7, 2000, FFWCC and Florida Department of 
Environmental Protection (FDEP) biologists found a single live purple 
bankclimber in the River Styx about 1.21 river km (0.75 river mi) 
upstream of its confluence with the Apalachicola River, and found live 
fat threeridges in Kennedy Slough/Kennedy Creek, another tributary of 
the lower Apalachicola River (EnviroScience 2006). The FFWCC letter 
also identified two additional unnamed distributaries of the 
Apalachicola River (small streams flowing from the main channel to 
Brushy Creek) as streams containing the purple bankclimber and fat 
threeridge. However, FFWCC staff found only dead shells of both species 
in one of these two distributaries, and EnviroScience (2006) found only 
dead shells of the purple bankclimber in the other. All of these sites 
are located in Liberty County, Florida, in stream segments that are 
contiguous with the stream segments proposed for inclusion in Unit 8--
Apalachicola River.
    From the survey data provided by FFWCC, we have determined that the 
extent of occurrence of the listed mussels in the Apalachicola River 
Basin includes the River Styx, Kennedy Slough, and Kennedy Creek, which 
we did not include within our originally proposed boundaries of Unit 8. 
These stream reaches are perennially flowing streams that support two 
of the seven mussels and are contiguous for the movement of potential 
fish hosts with Unit 8. The FFWCC data do not constitute evidence that 
the two

[[Page 34218]]

unnamed distributaries of the Apalachicola River (feeder streams to 
Brushy Creek) support listed species. Only dead shells of the listed 
species were found in these streams a relatively short distance from 
the main channel of the Apalachicola River, where live fat threeridge 
and purple bankclimber were found. Therefore, consistent with the 
methods we employed in the original proposal, we propose to revise the 
boundaries of Unit 8 to include a portion of the River Styx (3.8 river 
km (2.4 river mi)), Kennedy Slough (0.9 river km (0.5 river mi)), and 
Kennedy Creek (1.1 river km (0.7 river mi)). With these revisions, the 
total stream length we propose for Unit 8 increases from 155.4 river km 
(96.6 river mi) to 161.2 river km (100.2 river mi). Unit 8 will now 
include the main stem of the Apalachicola River, two of its 
distributaries, Chipola Cutoff and Swift Slough, and three of its 
tributaries, River Styx, Kennedy Slough, and Kennedy Creek. Please see 
the ``Proposed Regulation Promulgation'' section below for a complete 
description of Unit 8.

Lower Flint River (Unit 7) Proposed Change

    We are adding the fat threeridge to the list of species associated 
with proposed Unit 7 (Lower Flint River, Georgia). Fat threeridges were 
considered extirpated from the Flint River Basin; however, in August 
2006, live individuals were found in the mainstem of the Flint River in 
Mitchell and Baker Counties, Georgia. This revision does not alter the 
proposed boundaries of Unit 7, only the listed species for which we 
consider Unit 7 to be critical habitat. This addition is consistent 
with our 2003 recovery plan for the seven mussels, in which we stated 
that reintroduction into a portion of the Flint Basin was necessary for 
the recovery of the fat threeridge.
    In addition to the above substantive revisions to our proposal, we 
have removed Clayton County, Georgia, from the list of counties that 
contain proposed critical habitat. Because none of the stream segments 
we proposed, either originally or now, for designation is located 
within Clayton County, Georgia, this change is merely an editorial 
correction.

Summary of Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic or any other relevant impact of 
specifying any particular area as critical habitat. We will continue to 
review any conservation or management plans that address the species 
within the areas we have proposed for designation, pursuant to section 
4(b)(2) and based on the definition of critical habitat provided in 
section 3(5)(A) of the Act.
    Based on the June 6, 2006, proposed rule (71 FR 32746) to designate 
critical habitat for the seven mussels, we prepared a draft economic 
analysis of the proposed critical habitat designation (see ``Public 
Comments Solicited'' for how to obtain a copy). The draft economic 
analysis considers the potential economic effects of actions relating 
to the conservation of the seven mussels, including costs associated 
with sections 4, 7, and 10 of the Act, which would include costs 
attributable to designating critical habitat. It further considers the 
economic effects of protective measures taken as a result of other 
Federal, State, and local laws that aid habitat conservation for the 
seven mussels in critical habitat areas. The draft analysis considers 
both economic efficiency and distributional effects. In the case of 
habitat conservation, efficiency effects generally reflect the 
``opportunity costs'' associated with the commitment of resources to 
comply with habitat protection measures (such as lost economic 
opportunities associated with restrictions on land use). This analysis 
also addresses how potential economic impacts are likely to be 
distributed, including an assessment of any local or regional impacts 
of habitat conservation and the potential effects of conservation 
activities on small entities and the energy industry. Decision-makers 
can use this information to assess whether the effects of the 
designation might unduly burden a particular group or economic sector. 
Finally, this draft analysis looks retrospectively at costs that have 
been incurred since the date we listed these species as endangered or 
threatened (March 16, 1998; 63 FR 12664; effective date of listing was 
April 15, 1998) and considers costs that may occur in the 20 years 
following a designation of critical habitat.
    As stated earlier, we solicit data and comments from the public on 
this draft economic analysis, as well as on all aspects of our 
proposal. We may revise the proposal, or its supporting documents, to 
incorporate or address new information we receive during this comment 
period.
    The draft economic analysis is intended to quantify the economic 
impacts of all potential conservation efforts for the seven musselslet; 
some of these costs will likely be incurred regardless of whether 
critical habitat is designated. It estimates potential future impacts 
associated with conservation efforts for the seven mussels in areas we 
have proposed for designation to be $42.7 million to $67.9 million over 
the next 20 years (undiscounted). The present value of these impacts is 
$33.0 million to $52.1 million, using a discount rate of 3 percent 
(2.21 million to 3.49 million annually), or $24.7 million to $38.8 
million, using a discount rate of 7 percent (2.31 million to 3.63 
million annually). All dollar amounts include those costs coextensive 
with listing. The analysis measures lost economic efficiency associated 
with water management and use changes, in the event that flow regimes 
are modified to provide sufficient flow to conserve the seven mussels. 
These water management and use changes include agricultural irrigation 
and recreation. Up to 82 percent of the total impacts estimated in this 
report are associated with these water management and use changes to 
conserve the seven mussels. This analysis assumes that conservation 
efforts for the seven mussels may result in changes to water management 
and use, and that these changes may result in both economic efficiency 
and regional economic impacts. This analysis does not, however, make 
assumptions or recommendations regarding whether or how such water 
diversions could occur.

Required Determinations--Amended

    In our June 6, 2006, proposed rule (71 FR 32746), we indicated that 
we would be deferring our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders was available in the draft economic 
analysis. Those data are now available for our use in making these 
determinations. We now affirm the information contained in original 
proposed rule concerning Executive Order (E.O.) 13132 (Federalism); 
E.O. 12988 (Civil Justice Reform); the Paperwork Reduction Act; the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951); and 
the National Environmental Policy Act. Based on the information made 
available to us in the draft economic analysis, we are amending our 
Required Determinations, as provided below, concerning E.O. 12866 and 
the Regulatory Flexibility Act, E.O. 13211 (Energy Supply, 
Distribution, or Use), E.O. 12630 (Takings), and the Unfunded Mandates 
Reform Act.

[[Page 34219]]

Regulatory Planning and Review

    In accordance with E.O. 12866, this document is a significant rule, 
because it may raise novel legal and policy issues. However, we do not 
anticipate that it will have an annual effect on the economy of $100 
million or more or affect the economy in a material way. Due to the 
timeline for publication in the Federal Register, the Office of 
Management and Budget (OMB) did not formally review the proposed rule.
    Further, E.O. 12866 directs Federal agencies promulgating 
regulations to evaluate regulatory alternatives (OMB, Circular A-4, 
September 17, 2003). Pursuant to Circular A-4, if the agency determines 
that a Federal regulatory action is appropriate, the agency will need 
to consider alternative regulatory approaches. Since the determination 
of critical habitat is a statutory requirement pursuant to the Act, we 
must then evaluate alternative regulatory approaches, where feasible, 
when promulgating a designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat, providing that the benefits of 
such exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. We believe that the evaluation of the inclusion or 
exclusion of particular areas, or combination thereof, in a designation 
constitutes our regulatory alternative analysis.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C. 802(2)), whenever an agency is required to 
publish a proposed or final rule, it must prepare and make available 
for public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. In our proposed rule, we 
withheld our determination of whether this designation would result in 
a significant effect as defined under SBREFA until we completed our 
draft economic analysis of the proposed designation so that we would 
have the factual basis for our determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation, as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
the seven mussels would affect a substantial number of small entities, 
we considered the number of small entities affected within particular 
types of economic activities (such as residential and commercial 
development). We considered each industry or category individually to 
determine if certification is appropriate. In estimating the numbers of 
small entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
the designation of critical habitat. Designation of critical habitat 
only affects activities conducted, funded, permitted, or authorized by 
Federal agencies; non-Federal activities are not affected by the 
designation.
    In our draft economic analysis of the proposed critical habitat 
designation, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
listing of the seven mussels and proposed designation of their critical 
habitat. This analysis estimated prospective economic impacts due to 
the implementation of conservation efforts for the seven mussels in 
three categories: agricultural irrigation, recreation, and other 
economic activities (changes in water management facilities, 
transportation, water quality, species management, and administrative 
costs of section 7 consultations). The types of small entities that may 
bear the regulatory costs are associated with these land use 
activities: irrigated agriculture; recreation; water supply, 
hydropower, and other impoundment projects; and deadhead logging. The 
draft economic analysis includes an Initial Regulatory Flexibility 
Analysis to identify opportunities and minimize the impacts in the 
final rulemaking. The number of potentially affected small entities for 
irrigated agriculture is between 4 (a few farms bearing all the impact) 
and 1,096 (all farms bearing a portion of the impact) with an estimated 
impact per small entity of $78 to $87,000. Recreation could impact up 
to 5,100 regional small businesses at an estimated $2,700 per business. 
Water supply, hydropower, and other impoundment projects could have one 
hydropower operation affected for an estimated impact of $5,600. 
Deadhead logging could have ten logging businesses affected for an 
estimated impact of $2,500 per business. Based on currently available 
information, the Service believes that this is not a significant 
economic impact.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide

[[Page 34220]]

funding'' and the State, local, or Tribal governments ``lack 
authority'' to adjust accordingly. At the time of enactment, these 
entitlement programs were: Medicaid; Aid to Families with Dependent 
Children work programs; Child Nutrition; Food Stamps; Social Services 
Block Grants; Vocational Rehabilitation State Grants; Foster Care, 
Adoption Assistance, and Independent Living; Family Support Welfare 
Services; and Child Support Enforcement. ``Federal private sector 
mandate'' includes a regulation that ``would impose an enforceable duty 
upon the private sector, except (i) a condition of Federal assistance; 
or (ii) a duty arising from participation in a voluntary Federal 
program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. Non-Federal entities that receive Federal 
funding, assistance, or permits, or that otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (b) As discussed in the draft economic analysis of the proposed 
designation of critical habitat for the seven mussels, we expect the 
impacts on nonprofits and small governments to be negligible. It is 
likely that small governments involved with developments and 
infrastructure projects will be interested parties or involved with 
projects involving section 7 consultations for the seven mussels within 
their jurisdictional areas. Any costs associated with this activity are 
likely to represent a small portion of a local government's budget. 
Consequently, we do not believe that the designation of critical 
habitat for the seven mussels will significantly or uniquely affect 
these small governmental entities. As such, a Small Government Agency 
Plan is not required.

Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for the seven mussels. Critical habitat 
designation does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. In 
conclusion, the designation of critical habitat for the seven mussels 
does not pose significant takings implications.

Author

    The primary author of this notice is the Panama City (Florida) 
Field Office of the U.S. Fish and Wildlife Service.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 71 FR 32746, June 6, 2006, as follows:

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. Critical habitat for the seven mussel species (in four 
northeastern Gulf of Mexico drainages) in Sec.  17.95, which was 
proposed to be added to the end of paragraph (f) on June 6, 2006, at 71 
FR 32746, is proposed to be amended by revising paragraph (f)(1)(iii), 
the table in paragraph (6), paragraph (8), the introductory text of 
paragraph (13), and paragraph (14) in the entry for ``Seven mussel 
species (in four northeast Gulf of Mexico drainages): purple 
bankclimber (Elliptoideus sloatianus), Gulf moccasinshell (Medionidus 
penicillatus), Ochlockonee moccasinshell (Medionidus simpsonianus), 
oval pigtoe (Pleurobema pyriforme), shinyrayed pocketbook (Lampsilis 
subangulata), Chipola slabshell (Elliptio chipolaensis), and fat 
threeridge (Amblema neislerii),'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and snails.
* * * * *
    Seven mussel species (in four northeast Gulf of Mexico drainages): 
purple bankclimber (Elliptoideus sloatianus), Gulf moccasinshell 
(Medionidus penicillatus), Ochlockonee moccasinshell (Medionidus 
simpsonianus), oval pigtoe (Pleurobema pyriforme), shinyrayed 
pocketbook (Lampsilis subangulata), Chipola slabshell (Elliptio 
chipolaensis), and fat threeridge (Amblema neislerii).
    (1) * * *
    (iii) Georgia: Baker, Calhoun, Coweta, Crawford, Crisp, Decatur, 
Dooly, Dougherty, Early, Fayette, Grady, Lee, Macon, Marion, 
Meriwether, Miller, Mitchell, Peach, Pike, Schley, Spalding, Sumter, 
Talbot, Taylor, Terrell, Thomas, Upson, Webster, and Worth.
* * * * *
    (6) * * *

     Seven Mussel Species, Their Critical Habitat Units, and States
                 Containing Those Critical Habitat Units
------------------------------------------------------------------------
                                  Critical habitat
            Species                     units               States
------------------------------------------------------------------------
Purple bankclimber               Units 5, 6, 7, 8,   AL, FL, GA.
 (Elliptoideus sloatianus).       9, 10.
Gulf moccasinshell (Medionidus   Units 1, 2, 4, 5,   AL, FL, GA.
 penicillatus).                   6, 7.
Ochlockonee moccasinshell        Unit 9............  FL, GA.
 (Medionidus simpsonianus).
Oval pigtoe (Pleurobema          Units 1, 2, 4, 5,   AL, FL, GA.
 pyriforme).                      6, 7, 9, 11.
Shinyrayed pocketbook            Units 2, 3, 4, 5,   AL, FL, GA.
 (Lampsilis subangulata).         6, 7, 9.
Chipola slabshell (Elliptio      Unit 2............  AL, FL.
 chipolaensis).
Fat threeridge (mussel)          Units 2, 7, 8.....  AL, FL, GA.
 (Amblema neislerii).
------------------------------------------------------------------------


[[Page 34221]]

* * * * *
    (8) Unit 2. Chipola River and Dry, Rocky, Waddells Mill, Baker, 
Marshall, Big, and Cowarts Creeks; Houston County, Alabama; and 
Calhoun, Gulf, and Jackson Counties, Florida. This is a critical 
habitat unit for the fat threeridge, shinyrayed pocketbook, Gulf 
moccasinshell, oval pigtoe, and Chipola slabshell.
    (i) General Description: Unit 2 includes the main stem of the 
Chipola River and seven of its tributaries, encompassing a total length 
of 228.7 river km (142.1 river mi). In the original proposed rule, we 
delineated the full extent of post-1990 live occurrence records for the 
seven mussels in flowing streams as critical habitat. Barriers to the 
movement of potential fish hosts of the larval life stage of the 
mussels (dams and salt water) divided the collective extent of 
occurrence for the 7 species into 11 units, and we proposed each of 
these 7 units as critical habitat for whichever of the seven species 
occupy that particular unit. The upstream boundary of a unit in an 
occupied stream was the first perennial tributary confluence or first 
permanent barrier to fish passage (such as a dam) upstream of the 
upstream-most current occurrence record. The downstream boundary of a 
unit in an occupied stream was the mouth of the stream, the upstream 
extent of tidal influence, or the upstream extent of an impoundment, 
whichever comes first, downstream of the downstream-most occurrence 
record. The main stem of the Chipola River extends from its confluence 
with the Apalachicola River (-85.09 longitude, 30.01 latitude) in Gulf 
County, Florida, upstream 144.9 river km (90.0 river mi), including the 
reach known as Dead Lake, to the confluence of Marshall and Cowarts 
creeks (-85.27 longitude, 30.91 latitude) in Jackson County, Florida; 
Dry Creek from the Chipola River upstream 7.6 river km (4.7 river mi) 
to Ditch Branch (-85.24 longitude, 30.69 latitude), Jackson County, 
Florida; Rocky Creek from the Chipola River upstream 7.1 river km (4.4 
river mi) to Little Rocky Creek (-85.13 longitude, 30.68 latitude), 
Jackson County, Florida; Waddells Mill Creek from the Chipola River 
upstream 3.7 river km (2.3 river mi) to Russ Mill Creek (-85.29 
longitude, 30.87 latitude), Jackson County, Florida; Baker Creek from 
Waddells Mill Creek upstream 5.3 river km (3.3 river mi) to Tanner 
Springs (-85.32 longitude, 30.83 latitude), Jackson County, Florida; 
Marshall Creek from the Chipola River upstream 13.7 river km (8.5 river 
mi) to the Alabama-Florida State line (-85.33 longitude, 31.00 
latitude), Jackson County, Florida; Cowarts Creek from the Chipola 
River in Jackson County, Florida, upstream 33.5 river km (20.8 river 
mi) to the Edgar Smith Road bridge (-85.29 longitude, 31.13 latitude), 
Houston County, Alabama; and Big Creek from the Alabama-Florida State 
line upstream 13.0 river km (8.1 river mi) to Limestone Creek (-85.42 
longitude, 31.08 latitude), Houston County, Alabama. The short segment 
of the Chipola River that flows underground within the boundaries of 
Florida Caverns State Park is not included within this unit.
    (ii) Note: Unit 2 map follows:

BILLING CODE 4310-55-P

[[Page 34222]]

[GRAPHIC] [TIFF OMITTED] TP21JN07.000

* * * * *
    (13) Unit 7. Lower Flint River and Spring, Aycocks, Dry, 
Ichawaynochaway, Mill, Pachitla, Little Pachitla, Chickasawhatchee, and 
Cooleewahee creeks in Baker, Calhoun, Decatur, Dougherty, Early, 
Miller, Mitchell, and Terrell Counties, Georgia. This is a critical 
habitat unit for the fat threeridge, shinyrayed pocketbook, Gulf 
moccasinshell, oval pigtoe, and purple bankclimber. * * *
* * * * *
    (14) Unit 8. Apalachicola River, Chipola Cutoff, Swift Slough, 
River Styx, Kennedy Slough, and Kennedy Creek in Calhoun, Franklin, 
Gadsden, Gulf, Jackson, and Liberty Counties, Florida. This is a 
critical habitat unit for the fat threeridge and purple bankclimber.
    (i) General Description: Unit 8 includes the main stem of the 
Apalachicola River, two of its distributaries, Chipola Cutoff and Swift 
Slough, and three of its tributaries, River Styx, Kennedy Slough, and 
Kennedy Creek, encompassing a total length of 161.2 river km (100.2 
river mi). The main stem of the Apalachicola River extends from the 
downstream end of Bloody Bluff Island (river mile 15.3 on U.S. Army 
Corps of Engineers

[[Page 34223]]

Navigation Charts) (-85.01 longitude, 29.88 latitude), Franklin County, 
Florida, through Calhoun and Liberty Counties, Florida, upstream to the 
Jim Woodruff Lock and Dam (which impounds Lake Seminole) (-84.86 
longitude, 30.71 latitude), Gadsden and Jackson Counties, Florida; 
Chipola Cutoff from the Apalachicola River in Gulf County, Florida, 
downstream 4.5 river km (2.8 river mi) to its confluence with the 
Chipola River; Swift Slough from the Apalachicola River in Liberty 
County, Florida, downstream 3.6 river km (2.2 river mi) to its 
confluence with the River Styx (-85.12 longitude, 30.10 latitude); 
River Styx from the mouth of Swift Slough (-85.12 longitude, 30.10 
latitude) in Liberty County, Florida, downstream 3.8 river km (2.4 
river mi) to its confluence with the Apalachicola River; Kennedy Slough 
from (-85.07 longitude, 30.01 latitude) in Liberty County, Florida, 
downstream 0.9 river km (0.5 river mi) to its confluence with Kennedy 
Creek; and Kennedy Creek from Brushy Creek Feeder (-85.06 longitude, 
30.01 latitude) in Liberty County, Florida, downstream 1.1 river km 
(0.7 river mi) to its confluence with the Apalachicola River.
    (ii) Note: Unit 8 map follows:
    [GRAPHIC] [TIFF OMITTED] TP21JN07.001
    

[[Page 34224]]


* * * * *

    Dated: June 12, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E7-11897 Filed 6-20-07; 8:45 am]
BILLING CODE 4310-55-C