Endangered and threatened species: Critical habitat designations— Mussels; Northeast Gulf of Mexico drainages; public hearings, 34215-34224 [E7-11897]

Agencies

Fish and Wildlife Service

[Federal Register: June 21, 2007 (Volume 72, Number 119)]
[Proposed Rules]
[Page 34215-34224]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jn07-13]

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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
FW4ESFRPanamaCity@fws.gov. 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 https://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 FW4ESFRPanamaCity@fws.gov.
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 FW4ESFRPanamaCity@fws.gov.
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 https://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

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