2004 Federal Register, 69 FR 61774; Centralized Library: U.S. Fish and Wildlife Service

[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]

[DOCID:fr21oc04-16]

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DEPARTMENT OF THE INTERIOR

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.

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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.

FOR FURTHER INFORMATION CONTACT: Timothy Merritt, U.S. Fish and

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.

SUPPLEMENTARY INFORMATION:

Background

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

agency.

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

bioassays).

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

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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.

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

constrained.

(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

efforts.

(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

water.

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

them.

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.

Finding

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

chub.

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

below).

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

proposal.

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

tributaries.

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

habitat.

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

Act.

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-

13085-00.

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.

Author

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:

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. 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

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

Fishes

* * * * * * *

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

experimental

population..

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

experimental

population.

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:

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[[Page 61782]]

[GRAPHIC] [TIFF OMITTED] TP21OC04.003

[[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

section.

(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

efforts.

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

darter in Tennessee and Alabama follows:

[[Page 61784]]

[GRAPHIC] [TIFF OMITTED] TP21OC04.004

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]

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