[Federal Register: October 21, 2004 (Volume 69, Number 203)]

[Proposed Rules]               

[Page 61774-61784]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]





Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH44


Endangered and Threatened Wildlife and Plants; Establishment of a 

Nonessential Experimental Population for Two Fishes (Boulder Darter and 

Spotfin Chub) in Shoal Creek, Tennessee and Alabama

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), in 

cooperation with the States of Tennessee and Alabama and with 

Conservation Fisheries, Inc., a nonprofit organization, propose to 

reintroduce one federally listed endangered fish, the boulder darter 

(Etheostoma wapiti), and one federally listed threatened fish, the 

spotfin chub (Cyprinella (=Hybopsis) monacha), into their historical 

habitat in Shoal Creek, Lauderdale County, Alabama, and Lawrence 

County, Tennessee. Based on the evaluation of species' experts, these 

species currently do not exist in this reach or its tributaries. These 

two fish are being reintroduced under section 10(j) of the Endangered 

Species Act of 1973, as amended (Act), and would be classified as a 

nonessential experimental population (NEP).

    The geographic boundaries of the proposed NEP would extend from the 

mouth of Long Branch, Lawrence County, Tennessee (Shoal Creek mile (CM) 

41.7 (66.7 kilometers (km)), downstream to the backwaters of the Wilson 

Reservoir at Goose Shoals, Lauderdale County, Alabama (approximately CM 

14 (22 km)), and would include the lower 5 CM (8 km) of all tributaries 

that enter this reach.

    These proposed reintroductions are recovery actions and are part of 

a series of reintroductions and other recovery actions that the 

Service, Federal and State agencies, and other partners are conducting 

throughout the species' historical ranges. This proposed rule provides 

a plan for establishing the NEP and provides for limited allowable 

legal taking of the boulder darter and spotfin chub within the defined 

NEP area.

DATES: We will consider comments on this proposed rule that are 

received by December 20, 2004. Requests for a public hearing must be 

made in writing and received by December 6, 2004.

ADDRESSES: You may submit comments and other information, identified by 

RIN 1018-AH44, by any of the following methods:

     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.

     Mail or Hand Delivery: Field Supervisor, U.S. Fish and 

Wildlife Service, Tennessee Field Office, 446 Neal Street, Cookeville, 

Tennessee, 38501.

     Fax: (931) 528-7075.

     E-mail: timothy_merritt@fws.gov. Include ``Attn: Shoal 

Creek NEP'' in the subject line of the message.

    Instructions: All submissions received must include the agency name 

and Regulatory Information Number (RIN) for this rulemaking. Please 

include your name and return address in the body of your message. 

Please see the Public Comments Solicited section below for file format 

and other information about electronic filing. In the event that our 

internet connection is not functional, please contact the Service by 

the alternative methods mentioned above.

    The comments and materials we receive during the comment period 

will be available for public inspection, by appointment, during normal 

business hours at our Tennessee Field Office: U.S. Fish and Wildlife 

Service, 446 Neal Street, Cookeville, Tennessee, 38501. If you wish to 

request a public hearing, you may mail or hand deliver your written 

request to the above address.


Wildlife Service, 446 Neal Street, Cookeville, Tennessee 28801, 

telephone (931) 528-6481, Ext. 211, facsimile (931) 528-7075, or e-mail 

at timothy_merritt@fws.gov.



1. Legislative

    Congress made significant changes to the Act in 1982 with the 

addition of section 10(j), which provides for the designation of 

specific reintroduced populations of listed species as ``experimental 

populations.'' Previously, we had authority to reintroduce populations 

into unoccupied portions of a listed species' historical range when 

doing so would foster the species' conservation and recovery. However, 

local citizens often opposed these reintroductions because they were 

concerned about the placement of restrictions and prohibitions on 

Federal and private activities. Under section 10(j) of the Act, the 

Secretary of the Department of the Interior can designate reintroduced 

populations established outside the species' current range, but within 

its historical range, as ``experimental.'' Based on the best scientific 

and commercial data available, we must determine whether experimental 

populations are ``essential,'' or ``nonessential,'' to the continued 

existence of the species. Regulatory restrictions are considerably 

reduced under a Nonessential Experimental Population (NEP) designation.

    Without the ``nonessential experimental population'' designation, 

the Act provides that species listed as endangered or threatened are 

afforded protection primarily through the prohibitions of section 9 and 

the requirements of section 7. Section 9 of the Act prohibits the take 

of an endangered species. ``Take'' is defined by the Act as harass, 

harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt 

to engage in any such conduct. Service regulations (50 CFR 17.31) 

generally extend the prohibitions of take to threatened wildlife. 

Section 7 of the Act outlines the procedures for

[[Page 61775]]

Federal interagency cooperation to conserve federally listed species 

and protect designated critical habitat. It mandates all Federal 

agencies to determine how to use their existing authorities to further 

the purposes of the Act to aid in recovering listed species. It also 

states that Federal agencies will, in consultation with the Service, 

ensure that any action they authorize, fund, or carry out is not likely 

to jeopardize the continued existence of a listed species or result in 

the destruction or adverse modification of designated critical habitat. 

Section 7 of the Act does not affect activities undertaken on private 

land unless they are authorized, funded, or carried out by a Federal 


    For purposes of section 9 of the Act, a population designated as 

experimental is treated as threatened regardless of the species' 

designation elsewhere in its range. Through section 4(d) of the Act, 

threatened designation allows us greater discretion in devising 

management programs and special regulations for such a population. 

Section 4(d) of the Act allows us to adopt whatever regulations are 

necessary to provide for the conservation of a threatened species. In 

these situations, the general regulations that extend most section 9 

prohibitions to threatened species do not apply to that species, and 

the special 4(d) rule contains the prohibitions and exemptions 

necessary and appropriate to conserve that species. Regulations issued 

under section 4(d) for NEPs are usually more compatible with routine 

human activities in the reintroduction area.

    For the purposes of section 7 of the Act, we treat NEPs as a 

threatened species when the NEP is located within a National Wildlife 

Refuge or National Park, and section 7(a)(1) and the consultation 

requirements of section 7(a)(2) of the Act apply. Section 7(a)(1) 

requires all Federal agencies to use their authorities to conserve 

listed species. Section 7(a)(2) requires that Federal agencies, in 

consultation with the Service, insure that any action authorized, 

funded, or carried out is not likely to jeopardize the continued 

existence of a listed species or adversely modify its critical habitat. 

When NEPs are located outside a National Wildlife Refuge or National 

Park, we treat the population as proposed for listing and only two 

provisions of section 7 would apply--section 7(a)(1) and section 

7(a)(4). In these instances, NEPs provide additional flexibility 

because Federal agencies are not required to consult with us under 

section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer 

(rather than consult) with the Service on actions that are likely to 

jeopardize the continued existence of a species proposed to be listed. 

The results of a conference are advisory in nature and do not restrict 

agencies from carrying out, funding, or authorizing activities.

    Individuals that are used to establish an experimental population 

may come from a donor population, provided their removal will not 

create adverse impacts upon the parent population, and provided 

appropriate permits are issued in accordance with our regulations (50 

CFR 17.22) prior to their removal. In the case of the boulder darter 

and spotfin chub, the donor population is a captive-bred population, 

which was propagated with the intention of re-establishing wild 

populations to achieve recovery goals. In addition, it is possible that 

wild adult stock could also be released into the NEP area.

2. Biological Information

    The endangered boulder darter is an olive to gray colored fish that 

lacks the red spots common to most darters. It is a small fish, 

approximately 76 millimeters (mm) (3 inches (in)) in length. Although 

boulder darters were historically recorded only in the Elk River system 

and Shoal Creek, scientists believe, based on the historical 

availability of suitable habitat, that this darter once inhabited fast-

water rocky habitat in the Tennessee River and its larger tributaries 

in Tennessee and Alabama, from the Paint Rock River in Madison County, 

Alabama, downstream to at least Shoal Creek in Lauderdale County, 

Alabama (U.S. Fish and Wildlife Service 1989). Currently, it is 

extirpated from Shoal Creek and exists only in the Elk River, Giles and 

Lincoln Counties, Tennessee, and Limestone County, Alabama, and the 

lower reaches of Richland Creek, an Elk River tributary, Giles County, 

Tennessee (U.S. Fish and Wildlife Service 1989).

    The spotfin chub is also olive colored, but with sides that are 

largely silvery and with white lower parts. Large nuptial males have 

brilliant turquoise-royal blue coloring on the back, side of the head, 

and along the mid-lateral part of the body. It is also a small fish, 

approximately 92 millimeters (mm) (4 inches (in)) in length. The 

spotfin chub was once a widespread species and was historically known 

from 24 upper and middle Tennessee River system streams, including 

Shoal Creek. It is now extant in only four rivers/river systems--the 

Buffalo River at the mouth of Grinders Creek, Lewis County, Tennessee; 

the Little Tennessee River, Swain and Macon Counties, North Carolina; 

Emory River system (Obed River, Clear Creek, and Daddys Creek), 

Cumberland and Morgan Counties, Tennessee; the Holston River and its 

tributary, North Fork Holston River, Hawkins and Sullivan Counties, 

Tennessee, and Scott and Washington Counties, Virginia (U.S. Fish and 

Wildlife Service 1983; P. Shute, TVA, pers. comm. 1998).

    Since the mid-1980s, Conservation Fisheries, Inc. (CFI), a 

nonprofit organization, with support from us, the Tennessee Wildlife 

Resources Agency (TWRA), U.S. Forest Service, National Park Service, 

Tennessee Valley Authority (TVA), and Tennessee Aquarium, has 

successfully translocated, propagated, and reintroduced the spotfin 

chub and three other federally listed fishes (smoky madtoms, yellowfin 

madtoms, and duskytail darters) into Abrams Creek, Great Smoky 

Mountains National Park, Blount County, Tennessee. These fish 

historically occupied Abrams Creek prior to an ichthyocide treatment in 

the 1950s. An NEP designation for Abrams Creek was not needed since the 

entire watershed occurs on National Park Service land, section 7 of the 

Act applies regardless of the NEP designation, and existing human 

activities and public use of the Creek are consistent with protection 

and take restrictions needed for the reintroduced populations. Natural 

reproduction by all four species in Abrams Creek has been documented, 

but the spotfin chub appears to be the least successful in this 

capacity (Rakes et al. 2001; Rakes and Shute 2002). We have also worked 

with CFI to translocate, propagate, and reintroduce these same four 

fish into an NEP established for a section of the Tellico River, Monroe 

County, Tennessee (67 FR 52420, August 12, 2002). Propagated fish of 

these four species were released into the Tellico River starting in 

2003. It is still too early to determine the success of these releases, 

but it is believed that the habitat and water quality is sufficient to 

ensure future success similar to the Abrams Creek reintroductions. CFI 

has also successfully propagated boulder darters and augmented the only 

known population of the species in the Elk River system in Tennessee.

    Based on CFI's success and intimate knowledge of these two fishes 

and their habitat needs, we contracted with CFI to survey Shoal Creek 

in order to determine if suitable habitat exists in this creek for 

reintroductions, and if we could expand our ongoing fish recovery 

efforts to these waters (Rakes and Shute 1999). Rakes and Shute (1999) 

concluded that about 20 miles (32 km) of Shoal Creek above the 

backwaters of the Wilson Reservoir appeared to contain suitable 

reintroduction habitat

[[Page 61776]]

for both fishes. The boulder darter and spotfin chub were last 

collected from Shoal Creek in the 1880s, and since then both were 

apparently extirpated from this reach. We believe the boulder darter 

was extirpated by the combined effects of water pollution and the 

impoundment of lower Shoal Creek with the construction of Wilson Dam 

(U.S. Fish and Wildlife Service 1989). We believe that similar factors 

led to the extirpation of the spotfin chub for similar reasons. 

However, as a result of implementation of the Clean Water Act by the 

U.S. Environmental Protection Agency (EPA) and State water and natural 

resources agencies, and the pollution control measures undertaken by 

municipalities, industries, and individuals, the creek's water quality 

has greatly improved and its resident fish fauna has responded 

positively (Charles Saylor, TVA, pers. comm. 2002; based on his 


3. Recovery Goals/Objectives

    The boulder darter (Etheostoma wapiti) (Etnier and Williams 1989) 

was listed as an endangered species on September 1, 1988 (53 FR 33996). 

We completed a recovery plan for this species in July 1989 (U.S. Fish 

and Wildlife Service 1989). The downlisting (reclassification from 

endangered to threatened) objectives in the recovery plan are: (1) To 

protect and enhance the existing population in the Elk River and its 

tributaries, and to successfully establish a reintroduced population in 

Shoal Creek or other historical habitat or discover an additional 

population so that at least two viable populations exist; and (2) to 

complete studies of the species' biological and ecological requirements 

and implement management strategies developed from these studies that 

have been or are likely to be successful. The delisting objectives are: 

(1) to protect and enhance the existing population in the Elk River and 

its tributaries, and to successfully establish reintroduced populations 

or discover additional populations so that at least three viable 

populations exist (the Elk River population including the tributaries 

must be secure from river mile (RM) 90 downstream to RM 30); (2) to 

complete studies of the species' biological and ecological requirements 

and implement successful management strategies; and (3) to ensure that 

no foreseeable threats exist that would likely impact the survival of 

any populations.

    The spotfin chub (=turquoise shiner) (Cyprinella (=Hybopsis) 

monacha) (Cope 1868) was listed as a threatened species on September 9, 

1977, with critical habitat and a special rule (42 FR 45526). The 

critical habitat map was corrected on September 22, 1977 (42 FR 47840). 

We completed a recovery plan for this species in November 1983 (U.S. 

Fish and Wildlife Service 1983). We also established an NEP for the 

spotfin chub and three other federally listed fishes for a section of 

the Tellico River in Monroe County, Tennessee, on August 12, 2002 (67 

FR 52420). The delisting objectives in the recovery plan are: (1) To 

protect and enhance existing populations so that viable populations 

exist in the Buffalo River system, upper Little Tennessee River, Emory 

River system, and lower North Fork Holston River; (2) to ensure, 

through reintroduction and/or the discovery of two new populations, 

that viable populations exist in two other rivers; and (3) to ensure 

that no present or foreseeable threats exist that would likely impact 

the survival of any populations.

    The recovery criteria for both fishes generally agree that, to 

reach recovery, we must: (1) Restore existing populations to viable 

levels, (2) reestablish multiple, viable populations in historical 

habitats, and (3) eliminate foreseeable threats that would likely 

threaten the continued existence of any viable populations. The number 

of secure, viable populations (existing and restored) needed to achieve 

recovery varies by species and depends on the extent of the species' 

probable historical range (i.e., species that were once widespread 

require a greater number of populations for recovery than species that 

were historically more restricted in distribution). However, the 

reestablishment of historical populations is a critical component to 

the recovery of both the boulder darter and spotfin chub.

4. Reintroduction Site

    In May 1999 letters to us, the Commissioner of the Alabama 

Department of Conservation and Natural Resources (ADCNR) and the 

Executive Director of the TWRA requested that we consider designating 

NEPs for the spotfin chub and boulder darter and reintroducing both 

species into Shoal Creek, where they historically occurred.

    We previously established NEPs for the spotfin chub and three other 

federally listed fishes in the Tellico River, Tennessee, on August 12, 

2002 (67 FR 52420). Reintroductions of the spotfin chub were initiated 

in the Tellico River in 2002 and were continued in 2003 along with the 

first reintroductions of the remaining three fish species. These 

reintroduced fish are being monitored. We believe the Tellico River is 

suitable for the establishment of viable populations of each of these 

four fish and anticipate success as this recovery project proceeds. 

Establishment of viable populations of the spotfin chub in both the 

Tellico River under the existing regulation and in Shoal Creek if this 

proposed regulation is finalized will help achieve an objective in the 

recovery of this fish. However, it will take several years of 

monitoring to fully evaluate if populations of this fish (and the other 

fishes) have become established and remain viable in these historic 

river reaches.

    Based on the presence of suitable habitat, the positive response of 

native fish species to habitat improvements in Shoal Creek, the 

presence of similar fish species that have similar habitat requirements 

to both of these fishes, the recommendations mentioned above, and the 

evaluation of biologists familiar with Shoal Creek, we believe that 

Shoal Creek, from the mouth of Long Branch to the backwaters of the 

Wilson Reservoir, is suitable for the reintroduction of the boulder 

darter and spotfin chub as NEPs.

    According to P. Rakes (CFI, pers. comm. 1999), the best sites to 

reintroduce these fishes into Shoal Creek are between CM 33 (53 km) and 

CM 14 (22 km). Therefore, we propose to reintroduce the boulder darter 

and spotfin chub into historical habitat of the free-flowing reach of 

Shoal Creek between CM 33 and CM 14. This reach contains the most 

suitable habitat for the reintroductions. Neither species currently 

exists in Shoal Creek or its tributaries.

5. Reintroduction Procedures

    The dates for these proposed reintroductions, the specific release 

sites, and the actual number of individuals to be released cannot be 

determined at this time. Individual fish that would be used for the 

proposed reintroductions primarily will be artificially propagated 

juveniles. However, it is possible that wild adult stock could also be 

released into the NEP area. Spotfin chub and boulder darter propagation 

and juvenile rearing technology are available. The parental stock of 

the juvenile fishes for proposed reintroduction will come from existing 

wild populations. In some cases, the parental stock for juvenile fish 

will be returned back to the same wild population. Generally, the 

parents are permanently held in captivity.

    The permanent removal of adults from the wild for their use in 

reintroduction efforts may occur when one or more of the following 

conditions exist: (1) Sufficient adult fish are

[[Page 61777]]

available within a donor population to sustain the loss without 

jeopardizing the species; (2) the species must be removed from an area 

because of an imminent threat that is likely to eliminate the 

population or specific individuals present in an area; or (3) when the 

population is not reproducing. It is most likely that adults will be 

permanently removed because of the first condition: sufficient adult 

fish are available within a donor population to sustain the loss 

without jeopardizing the species. An enhancement of propagation or 

survival permit under section 10(a)(1)(A) of the Act is required. The 

permit will be issued before any take occurs, and we will coordinate 

these actions with the appropriate State natural resources agencies.

6. Status of Reintroduced Population

    Previous translocations, propagations, and reintroductions of 

spotfin chubs and boulder darters have not affected the wild 

populations of either species. The use of artificially propagated 

juveniles will reduce the potential effects on wild populations. The 

status of the extant populations of the boulder darter and spotfin chub 

is such that individuals can be removed to provide a donor source for 

reintroduction without creating adverse impacts upon the parent 

population. If any of the reintroduced populations become established 

and are subsequently lost, the likelihood of the species' survival in 

the wild would not be appreciably reduced. Therefore, we have 

determined that these reintroduced fish populations in Shoal Creek are 

not essential to the continued existence of the species. We will 

ensure, through our section 10 permitting authority and the section 7 

consultation process, that the use of animals from any donor population 

for these reintroductions is not likely to jeopardize the continued 

existence of the species.

    Reintroductions are necessary to further the recovery of these 

species. The NEP designation for the reintroduction alleviates 

landowner concerns about possible land and water use restrictions by 

providing a flexible management framework for protecting and recovering 

the boulder darter and spotfin chub, while ensuring that the daily 

activities of landowners are unaffected. In addition, the anticipated 

success of these reintroductions will enhance the conservation and 

recovery potential of these species by extending their present ranges 

into currently unoccupied historical habitat. These species are not 

known to exist in Shoal Creek or its tributaries at the present time.

7. Location of Reintroduced Population

    The NEP area, which encompasses all the sites for the proposed 

reintroductions, will be located in the free-flowing reach of Shoal 

Creek, Lauderdale County, Alabama, and Lawrence County, Tennessee, from 

the mouth of Long Branch downstream to the backwaters of the Wilson 

Reservoir. Section 10(j) of the Act requires that an experimental 

population be geographically separate from other wild populations of 

the same species. This proposed NEP area is totally isolated from 

existing populations of these species by large reservoirs, and neither 

fish species is known to occur in or move through large reservoirs. 

Therefore, the reservoirs will act as barriers to the species' 

downstream movement into the Tennessee River and its tributaries and 

ensure that this NEP remains geographically isolated and easily 

distinguishable from existing wild populations. Based on the fishes' 

habitat requirements, we do not expect them to become established 

outside the NEP. However, if any of the reintroduced boulder darters 

and spotfin chubs move outside the designated NEP area, then the fish 

would be considered to have come from the NEP area. In that case, we 

may propose to amend the rule and enlarge the boundaries of the NEP 

area to include the entire range of the expanded populations.

    The designated NEP area for the spotfin chub in the Tellico River 

(67 FR 52420) does not overlap or interfere with this proposed NEP area 

for Shoal Creek in Tennessee and Alabama because they are 

geographically separated river reaches.

    Critical habitat has been designed for the spotfin chub (42 FR 

47840, September 22, 1977); however, the designation does not include 

the proposed NEP area. Critical habitat has not been designated for the 

boulder darter. Section 10(j)(2)(C)(ii) of the Act states that critical 

habitat shall not be designated for any experimental population that is 

determined to be nonessential. Accordingly, we cannot designate 

critical habitat in areas where we have already established, by 

regulation, a nonessential experimental population.

8. Management

    The aquatic resources in the proposed reintroduction area are 

managed by the ADCNR and TWRA. Multiple-use management of these waters 

will not change as a result of the experimental designation. Private 

landowners within the NEP area will still be allowed to continue all 

legal agricultural and recreational activities. Because of the 

substantial regulatory relief provided by NEP designations, we do not 

believe the reintroduction of boulder darter and spotfin chub will 

conflict with existing human activities or hinder public use of the 

area. The ADCNR and the TWRA have previously endorsed the boulder 

darter and spotfin chub reintroductions under NEP designations and are 

supportive of this effort. The NEP designation will not require the 

ADCNR and the TWRA to specifically manage for reintroduced boulder 

darter and spotfin chub.

    The Service, State employees, and CFI, Inc., staff will manage the 

reintroduction. They will closely coordinate on reintroductions, 

monitoring, coordination with landowners and land managers, and public 

awareness, among other tasks necessary to ensure successful 

reintroductions of species.

    (a) Mortality: The Act defines ``incidental take'' as take that is 

incidental to, and not the purpose of, the carrying out of an otherwise 

lawful activity such as recreation (e.g., fishing, boating, wading, 

trapping or swimming), forestry, agriculture, and other activities that 

are in accordance with Federal, Tribal, State, and local laws and 

regulations. A person may take a boulder darter or spotfin chub within 

the experimental population area provided that the take is 

unintentional and was not due to negligent conduct. Such conduct will 

not constitute ``knowing take,'' and we will not pursue legal action. 

However, when we have evidence of knowing (i.e., intentional) take of a 

boulder darter or spotfin chub, we will refer matters to the 

appropriate authorities for prosecution. We expect levels of incidental 

take to be low since the reintroduction is compatible with existing 

human use activities and practices for the area.

    (b) Special Handling: Service employees and authorized agents 

acting on their behalf may handle boulder darter and spotfin chub for 

scientific purposes; to relocate boulder darter and spotfin chub to 

avoid conflict with human activities; for recovery purposes; to 

relocate boulder darter and spotfin chub to other reintroduction sites; 

to aid sick or injured boulder darter and spotfin chub; and to salvage 

dead boulder darter and spotfin chub.

    (c) Coordination with landowners and land managers: The Service and 

cooperators identified issues and concerns associated with the proposed 

boulder darter and spotfin chub reintroduction before preparing this 

proposed rule. The proposed

[[Page 61778]]

reintroduction also has been discussed with potentially affected State 

agencies, businesses, and landowners within the proposed release area. 

The land along the proposed NEP site is privately owned. International 

Paper owns a large tract within the proposed NEP area and has expressed 

a strong interest in working with us to establish these fish in their 

stretch of the creek. Most, if not all, of the identified businesses 

are small businesses engaged in activities along the affected reaches 

of this creek. Affected State agencies, businesses, landowners, and 

land managers have indicated support for the reintroduction, if boulder 

darter and spotfin chub released in the proposed experimental 

population area are established as an NEP and if aquatic resource 

activities in the proposed experimental population area are not 


    (d) Potential for conflict with human activities: We do not believe 

these proposed reintroductions will conflict with existing or proposed 

human activities or hinder public use of the NEP area within Shoal 

Creek. Experimental population special rules contain all the 

prohibitions and exceptions regarding the taking of individual animals. 

These special rules are compatible with routine human activities in the 

reintroduction area.

    (e) Monitoring: After the first initial stocking of these two fish, 

we will monitor annually their presence or absence and document any 

spawning behavior or young-of-the-year fish that might be present. This 

monitoring will be conducted primarily by snorkeling or seining and 

will be accomplished by contracting with the appropriate species 

experts. Annual reports will be produced detailing the stocking rates 

and monitoring activities that took place during the previous year. We 

will also fully evaluate these reintroduction efforts after 5 and 10 

years to determine whether to continue or terminate the reintroduction 


    (f) Public awareness and cooperation: On August 26, 1999, we mailed 

letters to 80 potentially affected congressional offices, Federal and 

State agencies, local governments, and interested parties to notify 

them that we were considering proposing NEP status in Shoal Creek for 

two fish species. We received a total of four responses, all of which 

supported our proposed designation and reintroductions.

    The EPA supported the proposal, commended the ADCNR, TWRA, and us 

for the proposal and its projected beneficial results, and stated that 

the reintroductions would assist them in meeting one of the goals of 

the Clean Water Act--restoring the biological integrity of the Nation's 


    The TVA strongly supported the concept of reintroducing extirpated 

species, but also cautioned that past industrial discharges into Shoal 

Creek could potentially limit or prevent the survival of sensitive 

fishes in the creek.

    The Tennessee Department of Environment and Conservation applauded 

our (TWRA, CFI, and us) efforts to restore Shoal Creek fishes. They 

also supported the proposed reintroductions under NEP status, because 

the designation will ensure that current human uses of Shoal Creek are 

given due consideration in recovery efforts for the species.

    Dr. David Etnier, Department of Ecology and Evolutionary Biology, 

University of Tennessee, Knoxville, Tennessee, supported the 

reintroductions and concluded that he saw no compelling reason to delay 


    We will inform the general public of the importance of this 

reintroduction project in the overall recovery of the boulder darter 

and spotfin chub. The designation of the NEP for Shoal Creek and 

adjacent areas would provide greater flexibility in the management of 

the reintroduced boulder darter and spotfin chub. The NEP designation 

is necessary to secure needed cooperation of the States, Tribes, 

landowners, agencies, and other interests in the affected area.


    Based on the above information, and using the best scientific and 

commercial data available (in accordance with 50 CFR 17.81), the 

Service finds that releasing the boulder darter and spotfin chub into 

the Shoal Creek Experimental Population Area under a Nonessential 

Experimental Population designation will further the conservation of 

the species.

Other Changes to the Regulations

    The spotfin chub was listed with critical habitat and a special 

rule on September 9, 1977, under the scientific name of Hybopsis 

monacha. The current list of endangered and threatened species at 50 

CFR 17.11(h), the existing experimental population on the Tellico River 

in Tennessee at 50 CFR 17.84(m), and the critical habitat designation 

at 50 CFR 17.95(e) all use the scientific name Cyprinella (=Hybopsis) 

monacha for the spotfin chub. However, the special rule at 50 CFR 

17.44(c) uses the scientific name Hybopsis monacha for the spotfin 

chub. We are proposing to correct the text for the special rule at 50 

CFR 17.44(c) by changing the scientific name for the spotfin chub from 

Hybopsis monacha to Cyprinella (=Hybopsis) monacha to make this section 

consistent with the text of the existing regulations for the spotfin 


    Also, unlike many of the existing experimental population 

regulations at 50 CFR 17.84, the entry for the experimental population 

for the Tellico River in Tennessee at 50 CFR 17.84(m) does not include 

a map. We are proposing to add a map for this entry to make this 

section consistent with the text of the existing regulations for 

experimental populations (see Proposed Regulation Promulgation section 


Public Comments Solicited

    We intend that any final action resulting from this proposal will 

be as accurate and as effective as possible. Therefore, we solicit 

comments or suggestions from the public, other concerned governmental 

agencies, the scientific community, industry, or any other interested 

parties concerning this proposed rule. If you wish to comment on this 

proposed rule, you may submit your comments and materials concerning 

this proposal by any one of several methods (see ADDRESSES).

    Comments submitted electronically should be in the body of the e-

mail message itself or attached as a text file (ASCII), and should not 

use special characters or encryption. Please also include ``Attn: Shoal 

Creek NEP,'' your full name, and your return address in your e-mail 

message. Our practice is to make comments, including names and home 

addresses of respondents, available for public review during regular 

business hours. Respondents may request that we withhold their home 

address, which we will honor to the extent allowable by law. There also 

may be circumstances in which we would withhold a respondent's 

identity, as allowable by law. If you wish for us to withhold your name 

and/or address, you must state this request prominently at the 

beginning of your comment. However, we will not consider anonymous 

comments. To the extent consistent with applicable law, we will make 

all submissions from organizations or businesses, and from individuals 

identifying themselves as representatives or officials of organizations 

or businesses, available for public inspection in their entirety. 

Comments and materials received will be available for public 

inspection, by appointment, during normal business hours at the 

Ecological Services Office in Cookeville, Tennessee (see ADDRESSES). 

Copies of the proposed rule are available on the Internet at http://cookeville.fws.gov


[[Page 61779]]

Peer Review

    In conformance with our policy on peer review, published on July 1, 

1994 (59 FR 34270), we will seek the expert opinions of at least three 

appropriate and independent specialists regarding this proposed rule. 

The purpose of such review is to ensure that our NEP designation is 

based on scientifically sound data, assumptions, and analyses. We will 

send copies of this proposed rule to these peer reviewers immediately 

following publication in the Federal Register. We will invite these 

peer reviewers to comment, during the public comment period, on the 

specific assumptions and conclusions regarding the proposed NEP.

    We will consider all comments and information received during the 

comment period on this proposed rule during preparation of a final 

rulemaking. Accordingly, the final decision may differ from this 


Public Hearings

    You may request a public hearing on this proposal. Requests must be 

made in writing at least 15 days prior to the close of the public 

comment period and sent to the Field Supervisor for the U.S. Fish and 

Wildlife Service in Tennessee (see ADDRESSES and DATES sections).

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    In accordance with the criteria in Executive Order 12866, this 

proposed rule to designate NEP status for the boulder darter and 

spotfin chub in Shoal Creek, Lauderdale County, Alabama and Lawrence 

County, Tennessee, is not a significant regulatory action subject to 

Office of Management and Budget review. This rule will not have an 

annual economic effect of $100 million or more on the economy and will 

not have an adverse effect on any economic sector, productivity, 

competition, jobs, the environment, or other units of government. The 

area affected by this rule consists of a very limited and discrete 

geographic segment of lower Shoal Creek (about 28 CM (44 km)) in 

southwestern Tennessee and northern Alabama. Therefore, a cost-benefit 

and economic analysis will not be required.

    We do not expect this rule to have significant impacts to existing 

human activities (e.g., agricultural activities, forestry, fishing, 

boating, wading, swimming, trapping) in the watershed. The 

reintroduction of these federally listed species, which will be 

accomplished under NEP status with its associated regulatory relief, is 

not expected to impact Federal agency actions. Because of the 

substantial regulatory relief, we do not believe the proposed 

reintroduction of these species will conflict with existing or proposed 

human activities or hinder public use of Shoal Creek or its 


    This rule will not create inconsistencies with other agencies' 

actions or otherwise interfere with an action taken or planned by 

another agency. Federal agencies most interested in this rulemaking are 

primarily the EPA and TVA. Both Federal agencies support the proposal. 

Because of the substantial regulatory relief provided by the NEP 

designation, we believe the reintroduction of the boulder darter and 

spotfin chub in the areas described will not conflict with existing 

human activities or hinder public utilization of the area.

    This rule will not materially affect entitlements, grants, user 

fees, or loan programs, or the rights and obligations of their 

recipients. Because there are no expected impacts or restrictions to 

existing human uses of Shoal Creek as a result of this rule, no 

entitlements, grants, user fees, loan programs, or the rights and 

obligations of their recipients are expected to occur.

    This rule does not raise novel legal or policy issues. Since 1984, 

we have promulgated section 10(j) rules for many other species in 

various localities. Such rules are designed to reduce the regulatory 

burden that would otherwise exist when reintroducing listed species to 

the wild.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 

not have a significant economic effect on a substantial number of small 

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

Although most of the identified entities are small businesses engaged 

in activities along the affected reaches of this creek, this rulemaking 

is not expected to have any significant impact on private activities in 

the affected area. The designation of an NEP in this rule will 

significantly reduce the regulatory requirements regarding the 

reintroduction of these species, will not create inconsistencies with 

other agencies' actions, and will not conflict with existing or 

proposed human activity, or Federal, State, or public use of the land 

or aquatic resources.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 

Business Regulatory Enforcement Fairness Act. This rule will not have 

an annual effect on the economy of $100 million or more. It will not 

cause a major increase in costs or prices for consumers; individual 

industries; Federal, State, or local government agencies; or geographic 

regions. This rule does not have significant adverse effects on 

competition, employment, investment, productivity, innovation, or the 

ability of United States-based enterprises to compete with foreign-

based enterprises. The intent of this special rule is to facilitate and 

continue the existing commercial activity while providing for the 

conservation of the species through reintroduction into suitable 


Unfunded Mandates Reform Act

    The proposed NEP designation will not place any additional 

requirements on any city, county, or other local municipality. The 

ADCNR and TWRA, which manages Shoal Creek's aquatic resources, 

requested that we consider these proposed reintroductions under an NEP 

designation. However, they will not be required to manage for any 

reintroduced species. Accordingly, this proposed rule will not 

``significantly or uniquely'' affect small governments. A Small 

Government Agency Plan is not required since this rulemaking does not 

require any action to be taken by local or State governments or private 

entities. We have determined and certify pursuant to the Unfunded 

Mandates Reform Act, 2 U.S.C. 1501 et seq., that this rulemaking will 

not impose a cost of $100 million or more in any given year on local or 

State governments or private entities (i.e., it is not a ``significant 

regulatory action'' under the Unfunded Mandates Reform Act.).

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 

significant takings implications. When reintroduced populations of 

federally listed species are designated as NEPs, the Act's regulatory 

requirements regarding the reintroduced listed species within the NEP 

are significantly reduced. Section 10(j) of the Act can provide 

regulatory relief with regard to the taking of reintroduced species 

within an NEP area. For example, this rule allows for the taking of 

these reintroduced fishes when such take is incidental to an otherwise 

legal activity, such as recreation (e.g., fishing, boating, wading, 

trapping, swimming), forestry, agriculture, and other activities that 

are in accordance with Federal, State, and local laws and regulations. 

Because of the substantial regulatory relief provided by NEP 

designations, we do not believe the reintroduction of these

[[Page 61780]]

fishes will conflict with existing or proposed human activities or 

hinder public use of the Shoal Creek system.

    A takings implication assessment is not required because this rule 

(1) will not effectively compel a property owner to suffer a physical 

invasion of property and (2) will not deny all economically beneficial 

or productive use of the land or aquatic resources. This rule will 

substantially advance a legitimate government interest (conservation 

and recovery of two listed fish species) and will not present a barrier 

to all reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, the rule does not have 

significant Federalism effects to warrant the preparation of a 

Federalism Assessment. This rule will not have substantial direct 

effects on the States, in the relationship between the Federal 

Government and the States, or on the distribution of power and 

responsibilities among the various levels of government. The State 

wildlife agencies in Alabama (ADCNR) and Tennessee (TWRA) requested 

that we undertake this rulemaking in order to assist the States in 

restoring and recovering their native aquatic fauna. Achieving the 

recovery goals for these species will contribute to their eventual 

delisting and their return to State management. No intrusion on State 

policy or administration is expected; roles or responsibilities of 

Federal or State governments will not change; and fiscal capacity will 

not be substantially directly affected. The special rule operates to 

maintain the existing relationship between the States and the Federal 

Government and is being undertaken at the request of State agencies 

(ADCNR and TWRA). We have cooperated with the ADCNR and TWRA in the 

preparation of this proposed rule. Therefore, this rule does not have 

significant Federalism effects or implications to warrant the 

preparation of a Federalism Assessment pursuant to the provisions of 

Executive Order 13132.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 

Solicitor has determined that this proposed rule does not unduly burden 

the judicial system and that it meets the requirements of sections 

(3)(a) and (3)(b)(2) of the Order.

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR 1320, 

which implement provisions of the Paperwork Reduction Act (44 U.S.C. 

3501 et seq.) require that Federal agencies obtain approval from OMB 

before collecting information from the public. An agency may not 

conduct or sponsor, and a person is not required to respond to, a 

collection of information, unless it displays a currently valid control 

number. This proposed rule does not include any new collections of 

information that require approval by OMB under the Paperwork Reduction 


National Environmental Policy Act

    We have determined that the issuance of this proposed rule is 

categorically excluded under our National Environmental Policy Act 

procedures (516 DM 6, Appendix 1.4 B (6)).

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 229511), Executive Order 13175, and the Department 

of the Interior Manual Chapter 512 DM 2, we have evaluated possible 

effects on federally recognized Indian tribes and have determined that 

there are no effects.

Energy Supply, Distribution or Use (E.O. 13211)

    On May 18, 2001, the President issued Executive Order 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. This rule is not 

expected to significantly affect energy supplies, distribution, and 

use. Therefore, this action is not a significant energy action and no 

Statement of Energy Effects is required.

Clarity of This Regulation (E.O. 12866)

    Executive Order 12866 requires each agency to write regulations 

that are easy to understand. We invite your comments on how to make 

this rule easier to understand, including answers to questions such as 

the following: (1) Are the requirements in the rule clearly stated? (2) 

Does the rule contain technical language or jargon that interferes with 

its clarity? (3) Does the format of the rule (grouping and order of 

sections, use of headings, paragraphing, etc.) aid or reduce its 

clarity? (4) Would the rule be easier to understand if it were divided 

into more (but shorter) sections? (5) Is the description of the rule in 

the SUPPLEMENTARY INFORMATION section of the preamble helpful in 

understanding the rule? (6) What else could we do to make the rule 

easier to understand?

    Send your comments concerning how we could make this rule easier to 

understand to: Office of Regulatory Affairs, Department of the 

Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may 

also e-mail your comments to: Exsec@ios.doi.gov.

Literature Cited

Rakes, P. L., P. W. Shute, and J. R. Shute. 1998. Captive propagation 

and population monitoring of rare Southeastern fishes. Final Report for 

1997. Field Season and Quarterly Report for Fiscal Year 1998, prepared 

for Tennessee Wildlife Resources Agency, Contract No. FA-4-10792-5-00. 

32 pp.

Rakes, P. L., and J. R. Shute. 1999. Results of assays of portions of 

the French Broad River, Sevier and Knox Counties, Tennessee, and Shoal 

Creek, Lawrence and Wayne Counties, Tennessee and Lauderdale Counties, 

Alabama, for suitable habitat to support reintroduction of rare fishes. 

Unpublished report prepared by Conservation Fisheries, Inc., Knoxville, 

Tennessee, for the U.S. Fish and Wildlife Service, Asheville, North 

Carolina. 26 pp.

Rakes, P.L., P.W. Shute, and J.R. Shute. 2001. Captive propagation and 

population monitoring of rare southeastern fishes: 2000. Unpublished 

Report to Tennessee Wildlife Resources Agency, Contract No. FA-99-


Rakes, P.L. and J.R. Shute. 2002. Captive propagation and population 

monitoring of rare southeastern fishes: 2001. Unpublished Report to 

Tennessee Wildlife Resources Agency, Contract No. FA-99-13085-00.

U.S. Fish and Wildlife Service. 1983. Spotfin Chub Recovery Plan. 

Atlanta, GA. 46 pp.

----1989. Boulder Darter Recovery Plan. Atlanta, GA. 15 pp.


    The principal author of this proposed rule is Timothy Merritt (see 

ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 

recordkeeping requirements, and Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 

I, title

[[Page 61781]]

50 of the Code of Federal Regulations, as set forth below:


    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. Amend Sec.  17.11(h) by revising the existing entries in the 

List of Endangered and Threatened Wildlife under FISHES for ``Chub, 

spotfin,'' and ``Darter, boulder,'' to read as follows:

Sec.  17.11  Endangered and threatened wildlife.

* * * * *

    (h) * * *


                        Species                                                    Vertebrate

--------------------------------------------------------                        population where                       When       Critical     Special

                                                            Historic range       endangered or         Status         listed      habitat       rules

           Common name                Scientific name                              threatened


                                                                      * * * * * * *


                                                                      * * * * * * *

Chub, spotfin (=turquoise shiner)  Cyprinella            U.S.A. (AL, GA, NC,  Entire, except       T.............      28, 732     17.95(e)     17.44(c)

                                    (=Hybopsis) monacha.  TN, VA).             where listed as an



 Do..............................  ......do............  ......do...........  Tellico River, from  XN............          732           NA     17.84(m)

                                                                               the backwaters of

                                                                               the Tellico

                                                                               Reservoir (about

                                                                               Tellico River mile

                                                                               19 (30 km))

                                                                               upstream to

                                                                               Tellico River mile

                                                                               33 (53 km), in

                                                                               Monroe County, TN.

 Do..............................  ......do............  ......do...........  Shoal Creek (from    ..............  ...........           NA     17.84(n)

                                                                               Shoal Creek mile

                                                                               41.7 (66.7 km)) at

                                                                               the mouth of Long

                                                                               Branch, Lawrence

                                                                               County, TN,

                                                                               downstream to the

                                                                               backwaters of

                                                                               Wilson Reservoir

                                                                               (Shoal Creek mile

                                                                               14 (22 km)) at

                                                                               Goose Shoals,

                                                                               Lauderdale County,

                                                                               AL, including the

                                                                               lower 5 miles (8

                                                                               km) of all

                                                                               tributaries that

                                                                               enter this reach.

                                                                      * * * * * * *

Darter, boulder..................  Etheostoma wapiti...  U.S.A. (AL, TN)....  Entire, except       E.............          322           NA           NA

                                                                               where listed as an



 Do..............................  ......do............  ......do...........  Shoal Creek (from    XN............  ...........           NA     17.84(n)

                                                                               Shoal Creek mile

                                                                               41.7 (66.7 km)) at

                                                                               the mouth of Long

                                                                               Branch, Lawrence

                                                                               County, TN,

                                                                               downstream to the

                                                                               backwaters of

                                                                               Wilson Reservoir

                                                                               (Shoal Creek mile

                                                                               14 (22 km)) at

                                                                               Goose Shoals,

                                                                               Lauderdale County,

                                                                               AL, including the

                                                                               lower 5 miles (8

                                                                               km) of all

                                                                               tributaries that

                                                                               enter this reach.

                                                                      * * * * * * *


Sec.  17.44  [Amended]

    3. Amend Sec.  17.44(c) by removing the words ``spotfin chub 

(Hybopsis monacha)'' and adding, in their place, the words ``spotfin 

chub (Cyprinella (=Hybopsis) monacha)''.

    4. Amend Sec.  17.84 by adding new paragraphs (m)(5) and (n), 

including maps, to read as follows:

Sec.  17.84  Special rules--vertebrates.

* * * * *

    (m) * * *

    (5) Note: Map of the NEP area for spotfin chub, duskytail 

darter, and smoky madtom in Tennessee follows:


[[Page 61782]]


[[Page 61783]]

    (n) Spotfin chub ( = turquoise shiner) (Cyprinella (=Hybopsis) 

monacha), boulder darter (Etheostoma wapiti).

    (1) Where are populations of these fishes designated as 

nonessential experimental populations (NEP)?

    (i) The NEP area for the boulder darter and the spotfin chub is 

within the species' historic ranges and is defined as follows: Shoal 

Creek (from Shoal Creek mile 41.7 (66.7 km)) at the mouth of Long 

Branch, Lawrence County, TN, downstream to the backwaters of Wilson 

Reservoir (Shoal Creek mile 14 (22 km)) at Goose Shoals, Lauderdale 

County, AL, including the lower 5 miles (8 km) of all tributaries that 

enter this reach.

    (ii) None of the fishes named in paragraph (n) of this section are 

currently known to exist in Shoal Creek or its tributaries. Based on 

the habitat requirements of these fishes, we do not expect them to 

become established outside the NEP area. However, if any individuals of 

either of the species move upstream or downstream or into tributaries 

outside the designated NEP area, we would presume that they came from 

the reintroduced populations. We would then amend paragraph (n)(1)(i) 

of this section and enlarge the boundaries of the NEP to include the 

entire range of the expanded population.

    (iii) We do not intend to change the NEP designations to 

``essential experimental,'' ``threatened,'' or ``endangered'' within 

the NEP area. Additionally, we will not designate critical habitat for 

these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).

    (2) What take is allowed in the NEP area? Take of these species 

that is accidental and incidental to an otherwise legal activity, such 

as recreation (e.g., fishing, boating, wading, trapping or swimming), 

forestry, agriculture, and other activities that are in accordance with 

Federal, State, and local laws and regulations, is allowed.

    (3) What take of these species is not allowed in the NEP area?

    (i) Except as expressly allowed in paragraph (n)(2) of this 

section, all the provisions of Sec.  17.31(a) and (b) apply to the 

fishes identified in paragraph (n)(1) of this section.

    (ii) Any manner of take not described under paragraph (n)(2) of 

this section is prohibited in the NEP area. We may refer unauthorized 

take of these species to the appropriate authorities for prosecution.

    (iii) You may not possess, sell, deliver, carry, transport, ship, 

import, or export by any means whatsoever any of the identified fishes, 

or parts thereof, that are taken or possessed in violation of paragraph 

(n)(3) of this section or in violation of the applicable State fish and 

wildlife laws or regulations or the Act.

    (iv) You may not attempt to commit, solicit another to commit, or 

cause to be committed any offense defined in paragraph (n)(3) of this 


    (4) How will the effectiveness of these reintroductions be 

monitored? After the initial stocking of these two fish, we will 

monitor annually their presence or absence and document any spawning 

behavior or young-of-the-year fish that might be present. This 

monitoring will be conducted primarily by snorkeling or seining and 

will be accomplished by contracting with the appropriate species 

experts. We will produce annual reports detailing the stocking rates 

and monitoring activities that took place during the previous year. We 

will also fully evaluate these reintroduction efforts after 5 and 10 

years to determine whether to continue or terminate the reintroduction 


    (5) Note: Map of the NEP area for spotfin chub and boulder 

darter in Tennessee and Alabama follows:

[[Page 61784]]


    Dated: September 20, 2004.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 04-23587 Filed 10-20-04; 8:45 am]