[Federal Register: April 8, 2005 (Volume 70, Number 67)]
[Rules and Regulations]               
[Page 17916-17927]
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: Final 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, plan 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 (a tributary to the Tennessee River), 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 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 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 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. In addition, we 
are changing the scientific name for spotfin chub, from Cyprinella 
(=Hybopsis) monacha to Erimonax monachus, to reflect a recent change in 
the scientific literature, and adding a map to the regulation for a 
previously created NEP including one of these fishes for the purposes 
of clarity.

DATES: The effective date of this rule is April 8, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in preparation of this final rule, are available for 
public inspection, by appointment, during normal business hours at the 
Tennessee Field Office, U.S. Fish and Wildlife Service, 446 Neal 
Street, Cookeville, TN 38501.
    You may obtain copies of the final rule from the field office 
address above, by calling (931) 528-6481, or from our Web site at 

FOR FURTHER INFORMATION CONTACT: Timothy Merritt at the above address 
(telephone 931/528-6481, Ext. 211, facsimile 931/528-7075, or e-mail at 



    1. Legislative: 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 Federal interagency 
cooperation to conserve federally listed species and protect designated 
critical habitat. It mandates that all Federal agencies use their 
existing authorities to further the purposes of the Act by carrying out 
programs for the conservation of 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 
    With the experimental population designation, a population 
designated is treated for purposes of section 9 of the Act as 
threatened regardless of the species' designation elsewhere in its 
range. 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 an NEP as a 
threatened species when the NEP is located within a National Wildlife 
Refuge or National Park, and section 7(a)(1) and the

[[Page 17917]]

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 (a tributary to 
the Tennessee River), 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 (a tributary to the Tennessee River) 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 and continuing in 2004. 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 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. 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 have 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

[[Page 17918]]

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 
    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 and 2004 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 
under this regulation 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. 2005), the best sites to 
reintroduce these fishes into Shoal Creek are between CM 33 (53 km) and 
CM 14 (22 km). Therefore, we plan 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 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 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 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 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.

[[Page 17919]]

    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 reintroductions, will be located in 
the free-flowing reach of Shoal Creek (a tributary to the Tennessee 
River), 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 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 NEP area for 
Shoal Creek in Tennessee and Alabama because they are geographically 
separated river reaches.
    Critical habitat has been designated for the spotfin chub (42 FR 
47840, September 22, 1977); however, the designation does not include 
this 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 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 boulder 
darter and spotfin chub reintroduction before preparing this rule. The 
reintroduction also has been discussed with potentially affected State 
agencies, businesses, and landowners within the release area. The land 
along the NEP site is privately owned. International Paper owns a large 
tract within the 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 experimental population area are established as an 
NEP and if aquatic resource activities in the experimental population 
area are not constrained.
    (d) Potential for conflict with human activities: We do not believe 
these 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

[[Page 17920]]

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 to the 1999 notification, 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 have informed 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, 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

    In addition, we are making two minor technical corrections to the 
existing regulations regarding these species:
    (1) 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. In the proposed rule (69 FR 61774, October 21, 2004), we proposed 
correcting 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. During the 
comment period, it was brought to our attention that the scientific 
name for the spotfin chub has recently been changed to Erimonax 
monachus (Nelson et al. 2004). This name change has occurred in a peer-
reviewed journal and has acceptance in the scientific community. 
Therefore we are correcting the text for 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), the 
critical habitat designation at 50 CFR 17.95(e), and the special rule 
at 50 CFR 17.44(c) by changing the scientific name for the spotfin chub 
from Cyprinella (=Hybopsis) monacha to Erimonax monachus (see 
Regulation Promulgation section below).
    (2) Unlike many of the existing experimental population regulations 
at 50 CFR 17.84, the entries for the experimental populations for the 
Tellico River in Tennessee at 50 CFR 17.84(e) and (m) do not include a 
map. We are adding a map for these entries in order to provide clarity 
for the public and make this section consistent with the text of the 
existing regulations for other experimental populations.

Summary of Comments and Recommendations

    In the October 21, 2004, proposed rule (69 FR 61774), we requested 
that all interested parties submit comments or information concerning 
the proposed NEP. We contacted appropriate Federal, State, and local 
agencies, county governments, elected officials, scientific 
organizations, and other interested parties and invited them to comment 
on the proposed NEP. We also provided notification of this document 
through e-mail, telephone calls, letters, and news releases faxed and/
or mailed to affected elected officials, media outlets, local 
jurisdictions, and interest groups. We provided the document on the 
Service's Tennessee Field Office Internet site following its release.
    During the public comment period, we received comments from four 
parties: One State agency, two universities, and one nonprofit 
organization. Of the four parties responding, three supported the 
proposed NEP and one was neutral. The Alabama Department of 
Conservation and Natural Resources submitted comments as peer 
reviewers. The State agency's comments are reflected in Peer Review 
Comment 1 and 2 below.
    In conformance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we solicited independent opinions from four 
knowledgeable individuals who have expertise with these species within 
the geographic region where the species occurs, and/or familiarity with 
the principles of conservation biology. We received comments from two 
of the four peer reviewers. These are included in the summary below and 
incorporated into this final rule.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding the 
proposed NEP. Substantive comments received during the comment period 
have either been addressed below or incorporated directly into this 
final rule. The comments are grouped below as either peer review or 
public comments.

Peer Review Comments

    (1) Comment: The proposed reintroduction is for Shoal Creek in 
Lauderdale County, Alabama; however, there is another Shoal Creek in 
Limestone County, Alabama, that is a tributary to the Elk River. 
Limestone County is adjacent to Lauderdale County and a recent survey 
by the Geological Survey of Alabama collected two boulder darters in 
this Shoal Creek, which was a new tributary record for this species. 
Because there are two creeks named ``Shoal'' in adjacent counties, it 
might help to differentiate between the two creeks to lessen any 
potential confusion.
    Response: We have clarified the description of the Shoal Creek in 
Lauderdale County, Alabama, that occurs within the NEP by stating that 
this Shoal Creek is a tributary to the Tennessee River. The Shoal Creek 
in Limestone County, Alabama, is a tributary to the Elk River. This, 
along with the county it occurs in, should adequately differentiate 
between the two creeks.

[[Page 17921]]

    (2) Comment: Section 5 of the proposed rule states that 
artificially propagated juveniles will most likely be reintroduced, but 
wild adult stock could also be used. The literature states that adult 
and juvenile spotfin chubs require slightly different habitats, thus 
reintroduction with juveniles should be done to account for those 
    Response: It is our intent to release primarily juvenile spotfin 
chubs that have been raised by CFI. We have worked closely with CFI to 
determine the appropriate habitats for releasing these juvenile fish. 
If we do release any wild adult stock, we will work with CFI and the 
State Wildlife Agencies to ensure that the appropriate habitat is 
identified for their release.
    (3) Comment: The newest names list for fish has been released and 
the scientific name of the spotfin chub has been changed to Erimonax 
    Response: We have reviewed the reference provided and concur that 
the scientific name of the spotfin chub has changed from Cyprinella 
(=Hybopsis) monacha to Erimonax monachus. We have made the appropriate 
changes in the section titled ``Other Changes to the Regulations'' (see 
    (4) Comment: The Etnier and Williams 1989 description of the 
boulder darter was cited, but does not appear in the Literature Cited 
    Response: This citation has been added to the Literature Cited 
    (5) Comment: Boulder darters may be able to use reservoirs for 
dispersal purposes, and success of this introduction might make it 
easier for them to reach the mouth of the Flint River or perhaps some 
other fairly large Tennessee River tributaries in Alabama.
    Response: We believe that the reservoirs will act as barriers to 
the species' downstream movement into the Tennessee River and its 
tributaries and will ensure that this NEP remains geographically 
isolated and easily distinguishable from existing known wild 
populations in the Elk River watershed. However, we also state that if 
any of the reintroduced boulder darters or 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.

Public Comments

    (6) Comment: Environmental Defense fully supports the proposal to 
establish new experimental populations of the boulder darter and the 
spotfin chub.
    Response: We appreciate Environmental Defense's support of this 
important recovery effort to restore these fish back into this portion 
of their historical range.
    (7) Comment: No source population for brood stock or wild adult 
stock is identified in the proposed rule for the spotfin chub.
    Response: The Service has not identified the source population for 
the spotfin chub because no decision has been made at this time on 
which source population should be used. A final decision will be made 
in concert with our State partners once we have reviewed the best 
available scientific information.
    (8) Comment: No protocol is outlined to determine if progeny from 
brood stock reflects the genetic diversity present in the source 
    Response: CFI states that it takes as many adults from the source 
population as the Federal and State agencies believe is appropriate to 
remove without harming the source population and within limits of 
practicality. CFI also states that it ensures that as many adults as 
possible are involved in reproduction. This sometimes involves cycling 
different males in and out of production. CFI emphasizes the importance 
of these reintroductions being long-term projects where new parental 
stock is brought into production every year or two from the original 
source population. We believe that this method maximizes our potential 
to have offspring that have similar genetic diversity to the source 
population and increases the recovery chances for these species within 
the limited amount of funding that Federal and State agencies have 
available to them.

Effective Date

    We are making this rule effective upon publication. In accordance 
with the Administrative Procedure Act, we find good cause as required 
by 5 U.S.C. 553(d)(3) to make this rule effective immediately upon 
publication in the Federal Register. We currently have two year classes 
of propagated boulder darters available for release. The juvenile class 
of boulder darters will be ready to spawn this spring for the first 
time. In order for this group of boulder darters to have the maximum 
amount of time to accomplish their first spawn, these fish need to be 
placed into Shoal Creek in April. The earlier in April these fish can 
be released, the more likely they are to spawn this spring. The older 
class of boulder darters are at the end of their spawning lives and 
must be placed into Shoal Creek by early May in order to ensure that 
they will have a chance to successfully spawn one last time in the 
wild. The 30-day delay would be contrary to the public interest because 
it would result in a loss of spawning for the first-time juvenile class 
and the last-time older class, and this would result in natural 
spawning not occurring in Shoal Creek until the spring of 2006.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    In accordance with the criteria in Executive Order 12866, this 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 
reintroductions. 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

[[Page 17922]]

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 NEP designation will not place any additional requirements on 
any city, county, or other local municipality. The ADCNR and TWRA, 
which manage Shoal Creek's aquatic resources, requested that we 
consider these reintroductions under an NEP designation. However, they 
will not be required to manage for any reintroduced species. 
Accordingly, this 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 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 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 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 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 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

[[Page 17923]]

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.

Literature Cited

Etnier, D.A., and J.D. Williams. 1989. Etheostoma (Nothonotus) 
wapiti (Osteichthyes: Percidae), a new darter from the southern bend 
of the Tennessee River system in Alabama and Tennessee. Proceedings 
of the Biological Society of Washington 102:987-1000
Nelson, J.S., E.J. Crossman, H. Espinosa-Perez, L.T. Findley, C.R. 
Gilbert, R.N. Lea, and J.D. Williams. 2004. Common and scientific 
names of fishes from the United States, Canada, and Mexico. Amer. 
Fisheries Soc. Spec. Pub. 29, Bethesda, MD, 386 p.
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.


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

List of Subjects in 50 CFR Part 17

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

Final Regulation Promulgation

Accordingly, we amend part 17, subchapter B of chapter I, title 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                                Critical     Special
                                                             Historic range         endangered or        Status    When listed    habitat       rules
            Common name                Scientific name                               threatened

                                                                      * * * * * * *

                                                                      * * * * * * *
Chub, spotfin.....................  Erimonax monachus...  U.S.A. (AL, GA, NC,   Entire, except where            T      28, 732     17.95(e)     17.44(c)
(=turquoise shiner)...............                         TN, VA).              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.

[[Page 17924]]

 Do...............................  ......do............  ......do............  Shoal Creek (from              XN          747           NA     17.84(o)
                                                                                 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            Entire, except where  ....................            E          322           NA           NA
                                     wapitiU.S.A. (AL,     listed as an
                                     TN).                  experimental
 Do...............................  ......do............  ......do............  Shoal Creek (from              XN          747           NA     17.84(o)
                                                                                 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) introductory text by removing the words 
``spotfin chub (Hybopsis monacha)'' and adding, in their place, the 
words ``spotfin chub (Erimonax monachus)''.

4. Amend Sec.  17.84 by adding new paragraphs (e)(6), revising the 
introductory text to paragraph (m), and adding new paragraphs (m)(5) 
and (o) including maps to read as follows:

Sec.  17.84  Special rules--vertebrates.

* * * * *
    (e) * * *

    (6) Note: Map of the NEP area for the yellowfin madtom in the 
Tellico River, Tennessee, appears immediately following paragraph 
(m)(5) of this section.
* * * * *
    (m) Sptofin chub (=turquoise shiner) (Erimonax monachus), duskytail 
darter (Etheostoma percnurum), smoky madtom (Noturus baileyi).
* * * * *
    (5) Note: Map of the NEP area for spotfin chub, duskytail 
darter, smoky madtom, and and yellowfin madtom (see paragraph (e) of 
this section) in Tennessee follows:


[[Page 17925]]


[[Page 17926]]

    (o) Spotfin chub (=turquoise shiner) (Erimonax monachus), 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 (o) 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.
    (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 (o)(2) of this 
section, all the provisions of Sec.  17.31(a) and (b) apply to the 
fishes identified in paragraph (o)(1) of this section.
    (ii) Any manner of take not described under paragraph (o)(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 
(o)(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 (o)(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 17927]]


5. Amend Sec.  17.95(e) by removing the words ``SPOTFIN CHUB 
(Cyprinella (=Hybopsis) monacha)'' and adding, in their place, the 
words ``SPOTFIN CHUB (Erimonax monachus)''.

    Dated: April 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-7086 Filed 4-7-05; 8:45 am]