Thursday, September 13, 2007

Part II

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Establishment of Nonessential Experimental Population Status for 15 Freshwater Mussels, 1 Freshwater Snail, and 5 Fishes in the Lower French Broad River and in the Lower Holston River, Tennessee; Final Rule

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DEPARTMENT OF THE INTERIOR their tributaries. These species are being Regulatory restrictions are considerably reintroduced under the authority of reduced under a Non-essential Fish and Wildlife Service section 10(j) of the Act and would be Experimental Population (NEP) classified as a nonessential designation. 50 CFR Part 17 experimental population (NEP). Without the NEP designation, the Act RIN 1018–AU01 The geographic boundaries of the NEP provides that species listed as would extend from the base of Douglas endangered or threatened are afforded Endangered and Threatened Wildlife Dam (river mile (RM) 32.3 (51.7 protection primarily through the and Plants; Establishment of kilometers (km)) down the French Broad prohibitions of section 9 and the Nonessential Experimental Population River, Knox and Sevier Counties, requirements of section 7. Section 9 of Status for 15 Freshwater Mussels, 1 Tennessee, to its confluence with the the Act prohibits the take of an Freshwater Snail, and 5 Fishes in the Holston River and then up the Holston endangered species. ‘‘Take’’ is defined Lower French Broad River and in the River, Knox, Grainger, and Jefferson by the Act as ‘‘harass, harm, pursue, Lower Holston River, Tennessee Counties, Tennessee, to the base of hunt, shoot, wound, trap, capture, or Cherokee Dam (RM 52.3 (83.7 km)) and collect, or attempt to engage in any such AGENCY: Fish and Wildlife, Interior. would include the lower 5 RM (8 km) conduct.’’ Service regulations (50 CFR ACTION: Final rule. of all tributaries that enter these river 17.31) generally extend the prohibitions reaches. of take to threatened wildlife. Section 7 SUMMARY: We, the U.S. Fish and These reintroductions are recovery of the Act outlines the procedures for Wildlife Service (Service), in actions and are part of a series of Federal interagency cooperation to cooperation with the State of Tennessee reintroductions and other recovery conserve federally listed species and and Conservation Fisheries, Inc., a actions that the Service, Federal and protect designated critical habitat. It nonprofit organization, plan to State agencies, and other partners are mandates that all Federal agencies use reintroduce 15 mussels listed as conducting throughout the species’ their existing authorities to further the endangered under section 4 of the historical ranges. This rule provides a purposes of the Act by carrying out Endangered Species Act of 1973, as plan for establishing the NEP and programs for the conservation of listed amended (Act): Appalachian provides for limited allowable legal take species. It also states that Federal monkeyface (pearlymussel) (Quadrula of these 16 mollusks and 5 fishes within agencies will, in consultation with the sparsa), birdwing pearlymussel (Lemiox the defined NEP area. We have decided Service, ensure that any action they rimosus), cracking pearlymussel to include all 21 species in a single authorize, fund, or carry out is not likely (Hemistena lata), Cumberland bean rulemaking to allow us to restore the to jeopardize the continued existence of (pearlymussel) (Villosa trabalis), aquatic ecosystem as quickly as possible a listed species or result in the Cumberlandian combshell (Epioblasma as we bring each of these species on line destruction or adverse modification of brevidens), Cumberland monkeyface in the propagation facilities. We have designated critical habitat. Section 7 of (pearlymussel) (Quadrula intermedia), reasons to believe all of these species the Act does not affect activities dromedary pearlymussel (Dromus co-existed in the past, and we also want undertaken on private land unless they dromas), fanshell (Cyprogenia stegaria), the public to understand that all of these are authorized, funded, or carried out by fine-rayed pigtoe (Fusconaia cuneolus), species will be reintroduced into the a Federal agency. orange-foot pimpleback (pearlymussel) same stretch of river. We are not A population designated as (Plethobasus cooperianus), oyster establishing 21 separate NEPs. experimental is treated for the purposes mussel (Epioblasma capsaeformis), ring DATES: The effective date of this rule is of section 9 of the Act as threatened, pink (mussel) (Obovaria retusa), rough October 15, 2007. regardless of the species’ designation pigtoe (Pleurobema plenum), shiny ADDRESSES: You may obtain copies of elsewhere in its range. Threatened pigtoe (Fusconaia cor), and white designation allows us greater discretion wartyback (pearlymussel) (Plethobasus the final rule from the field office address above, by calling (931) 528– in devising management programs and cicatricosus); 1 endangered aquatic special regulation for such a population. snail: Anthony’s riversnail (Athearnia 6481, or from our Web site at http:// cookeville.fws.gov. Section 4(d) of the Act allows us to anthonyi); 2 endangered fishes: adopt whatever regulations are duskytail darter (Etheostoma FOR FURTHER INFORMATION CONTACT: necessary to provide for the percnurum) and pygmy madtom Geoff Call, U.S. Fish and Wildlife conservation of a threatened species. In (Noturus stanauli); and 3 fishes listed as Service, at the above address (telephone these situations, the regulations that threatened under section 4 of the Act: 931/528–6481, Ext. 213, facsimile 931/ generally extend most section 9 slender chub (Erimystax cahni), spotfin 528–7075, or e-mail at prohibitions to threatened species do _ chub (=turquoise shiner) (Erimonax geoff [email protected]). not apply to NEPs, although the special monachus), and yellowfin madtom SUPPLEMENTARY INFORMATION: 4(d) rule contains the prohibitions and (Noturus flavipinnis). We published the exceptions necessary and appropriate to proposed rule for this action on June 13, Background conserve that species. Regulations 2006 (71 FR 34196). The species will be 1. Legislative: Under section 10(j) of issued under section 4(d) for NEPs are released into their historical habitat in the Act, the Secretary of the Department usually more compatible with routine the free-flowing reach of the French of the Interior may designate human activities in the reintroduction Broad River from below Douglas Dam to reintroduced populations established area. its confluence with the Holston River, outside the species’ current range, but For the purposes of section 7 of the Knox County, Tennessee, and in the within its historical range, as Act, we treat an NEP as a threatened free-flowing reach of the Holston River ‘‘experimental.’’ Based on the best species when the NEP is located within from below Cherokee Dam to its scientific and commercial data a National Wildlife Refuge or National confluence with the French Broad River. available, we must determine whether Park, and section 7(a)(1) and the Based on the evaluation of species experimental populations are consultation requirements of section experts, none of these 21 species ‘‘essential’’ or ‘‘nonessential’’ to the 7(a)(2) of the Act apply. When NEPs are currently exist in these river reaches or continued existence of the species. located outside a National Wildlife

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Refuge or National Park, we treat the Since the mid-1980s CFI, a nonprofit historically occurred in the Tennessee population as proposed for listing and organization, with support from us, the River and three of its tributaries: the only two provisions of section 7 apply: Tennessee Wildlife Resources Agency Clinch, Holston, and Powell Rivers Section 7(a)(1) and section 7(a)(4). In (TWRA), U.S. Forest Service, National (Service 1984a, pp. 2–4). We are these instances, NEPs provide Park Service, TVA, and Tennessee unaware of historical records of the additional flexibility because Federal Aquarium, has successfully species in the French Broad River, but agencies are not required to consult translocated, propagated, and archeological records (Parmalee and with us under section 7(a)(2). Section reintroduced spotfin chubs, duskytail Bogan 1988, p. 168) of this species exist 7(a)(4) requires Federal agencies to darters, yellowfin madtoms, and smoky from the Little Pigeon River (a lower confer (rather than consult) with the madtoms into Abrams Creek, Great French Broad River tributary). The Service on actions that are likely to Smoky Mountains National Park, Blount species may still survive in extremely jeopardize the continued existence of a County, Tennessee. These fish low numbers in the Powell River in species proposed to be listed. The historically occupied Abrams Creek Tennessee and the Clinch River in results of a conference are advisory in prior to an ichthyocide treatment in the Virginia (Parmalee and Bogan 1998, p. nature and do not restrict agencies from 1950s. An NEP designation for Abrams 223). No downlisting (reclassification authorizing, funding, or carrying out Creek was not needed since the entire from endangered to threatened) criteria activities. watershed occurs on National Park are provided in the recovery plan. The 2. Biological Information: Prior to the Service land, section 7 of the Act delisting objectives for the Appalachian impoundments, the lower French Broad applies regardless of the NEP monkeyface (Service1984a, pp. 19–20) and Holston Rivers historically designation, and existing human are to: (1) Restore the viability of the supported a diverse fish, snail, and activities and public use are consistent Clinch and Powell River populations; mussel fauna, possibly as many as 85 with protection and take restrictions (2) reestablish or discover viable mussel species and subspecies, or about needed for the reintroduced populations in one additional river; (3) 65 percent of the mussel diversity once populations. Natural reproduction by ensure that the species is protected from known from the entire Tennessee River three of the four species in Abrams present and foreseeable threats to the system (Parmalee and Bogan 1998, pp. Creek has been documented (Rakes continued existence of any population; 1–328; Ahlstedt 2004). Of this once-rich 2007). The spotfin chub reintroductions and (4) determine that there are aquatic fauna, 7 mussel species are appear to be the least successful in this noticeable improvements in coal-related extinct, and 21 are federally listed capacity (Shute et al. 2006, p. 106; problems and substrate quality in the species (i.e., 15 mussels, 1 aquatic snail, Rakes 2007). We have also worked with Powell River and that no increase in and 5 fishes, listed in the SUMMARY CFI to translocate, propagate, and coal-related sedimentation has occurred section, above, are extirpated from these reintroduce these same four fish into an in the Clinch River. river reaches). The only federally listed NEP established for a section of the The birdwing pearlymussel (Lemiox mussel still occurring in the NEP area is Tellico River, Monroe County, rimosus) (Conrad 1834) was listed as an the endangered pink mucket (Lampsilis Tennessee (67 FR 52420, August 12, endangered species on June 14, 1976 (41 abrupta), which still occurs in both the 2002). Propagated fish of these four FR 24062). We finalized a recovery plan lower French Broad and lower Holston species were released into the Tellico for the species in July 1984 (Service Rivers (Ahlstedt 2004; Layzer and Scott River starting in 2003 and continuing 1984b). We also established an NEP for 2005, p. 11). The pink mucket is not one yearly through 2007. Early indications the birdwing pearlymussel and 15 other of the 15 mussel species we are show that these species are surviving federally listed mussels for a section of proposing to reintroduce under this and have had some success in spawning the Tennessee River below the Wilson NEP. (Rakes 2007). It will take several more Dam in Colbert and Lauderdale Although much of the mussel fauna years of reintroductions to ensure future Counties, Alabama, on June 14, 2001 (66 and some of the snail and fish fauna success similar to the Abrams Creek FR 32250). Historical records exist for were eliminated from these river reintroductions. CFI has also the species in 11 rivers in the Tennessee reaches, considerable suitable physical successfully placed yellowfin madtoms River system, and one record exists from habitat remains, and various Federal in an existing NEP on the North Fork an unknown location in the Cumberland (primarily the Tennessee Valley Holston River, Washington County, River. Historically, the species occurred Authority (TVA)) and State natural Virginia. This site is separated from the in the Tennessee River near the resources agencies, industries, and NEP on the lower Holston River by confluence of the French Broad and municipalities have worked together to reservoirs, and the fish is not known Holston Rivers, in the Holston River just improve the water quality below the from any of these reservoirs or upstream of its confluence with the dams. Fish populations are rebounding intervening river sections. These French Broad River, and in the (including the appropriate fish host reservoirs and river sections act as Nolichucky River (a French Broad River species for mussel glochidia (larvae)) barriers to movement by the fish and tributary) (Parmalee and Bogan 1998, p. and snail populations are expanding in assure that the North Fork Holston River 146). Archeological records (Parmalee both rivers, and non-federally listed population will remain geographically 1988, p. 171) of this species exist from mussels and snails released into the isolated and easily identifiable as a the Little Pigeon River, a lower French lower French Broad River to test the distinct population from the Lower Broad River tributary. It now survives in area’s suitability for mollusk transplants Holston River population. the Clinch and Powell Rivers in are doing well. Based on the results of 3. Listing Information, Distribution, Tennessee and Virginia and in the Duck recent studies and observations by and Recovery Goals/Objectives: The and Elk Rivers in Tennessee (Service knowledgeable scientists (Rakes and Appalachian monkeyface 1984b, p. 2). No downlisting criteria are Shute 1999, p. 5; Scott and Saylor 2004; (pearlymussel) (Quadrula sparsa) (Lea given in the recovery plan. The delisting Layzer and Ahlstedt 2004; Layzer and 1841) was listed as an endangered objectives for the birdwing pearlymussel Scott 2005, pp. 14–15), these river species on June 14, 1976 (41 FR 24062). (Service 1984b, pp. 19–20) are to: (1) reaches now provide suitable habitat for We finalized a recovery plan for the Restore the viability of the Clinch and reintroductions to occur. species in July 1984 (Service 1984a). It Powell River populations, (2) reestablish

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or discover viable populations in two established an NEP for the Cumberland p. 171) of this species exist from the additional rivers; (3) ensure that the bean and 15 other federally listed Little Pigeon River, a lower French species is protected from present and mussels for a section of the Tennessee Broad River tributary. The downlisting foreseeable threats to the continued River below the Wilson Dam in Colbert objectives for the Cumberlandian existence of any population; and (4) and Lauderdale Counties, Alabama, on combshell (Service 2004, pp. 65–68) call determine that noticeable improvements June 14, 2001 (66 FR 32250). This for the reestablishment/discovery of six in coal-related problems and substrate species historically occurred in 10 river viable populations and one naturally quality have occurred in the Powell systems in the Cumberland and reproducing year class within each River and that no increase in coal- Tennessee River basins (Service 1984c, viable population. The delisting related sedimentation has occurred in pp. 2–3). No historical records exist in objectives are to: (1) Reestablish or the Clinch River. the French Broad River system, but discover viable populations in nine The cracking pearlymussel archaeological records (Parmalee 1988, distinct streams, including three in the (Hemistena lata) (Rafinesque 1820) was p. 172) of this species exist from the Cumberland River system, four in the listed as an endangered species on Little Pigeon River, a lower French upper Tennessee River system, and two September 28, 1989 (54 FR 39850). We Broad River tributary. The Cumberland in the lower Tennessee River system; (2) finalized a recovery plan for the species bean now survives only in the Hiwassee ensure that the species is protected from in July 1991 (Service 1991a). We also River in Tennessee; in Buck Creek, the present and foreseeable threats to the established an NEP for the cracking Little South Fork of the Cumberland continued existence of any population; pearlymussel and 15 other federally River, and the Rockcastle River system and (3) two distinct naturally listed mussels for a section of the in Kentucky; and in the Big South Fork reproducing year classes exist within Tennessee River below the Wilson Dam of the Cumberland River in Tennessee each of the viable populations. in Colbert and Lauderdale Counties, and Kentucky (Service 1984c, pp. 2–6). The Cumberland monkeyface Alabama, on June 14, 2001 (66 FR No downlisting criteria are given in the (pearlymussel) (Quadrula intermedia) 32250). This species historically recovery plan. The delisting objectives (Conrad 1836) was listed as an occurred in the Ohio, Cumberland, and for the Cumberland bean (Service 1984c, endangered species on June 14, 1976 (41 Tennessee River systems (Bogan and pp. 18–19) are to: (1) Restore the FR 24062). We completed a recovery Parmalee 1983, pp. 44–45, Service viability of populations in Buck Creek, plan for the species in July 1984 1991a, pp. 2–5). It is extirpated the Rockcastle River, and the Little (Service 1984d). We also established an throughout much of its range. Historical South Fork River in Kentucky; (2) NEP for the Cumberland monkeyface records exist from the Tennessee River reestablish or discover viable and 15 other federally listed mussels for near the confluence of the French Broad populations in two additional rivers; (3) a section of the Tennessee River below and Holston Rivers (Parmalee and ensure that the species is protected from the Wilson Dam in Colbert and Bogan 1998, p. 122). No historical present and foreseeable threats to the Lauderdale Counties, Alabama, on June records exist for the species in the continued existence of any population, 14, 2001 (66 FR 32250). It historically French Broad system, but archaeological and (4) determine that noticeable occurred in 11 rivers in the Tennessee records (Parmalee 1988, pp. 168–169) of improvements in coal-related problems River system (Service 1984d, pp. 2–3). this species exist from the Little Pigeon and substrate quality have occurred in Based on collections from aboriginal River, a lower French Broad River the upper Cumberland and Tennessee shell middens, Parmalee and Bogan (1998, pp. 214–215) stated that the tributary. It now survives at a few shoals drainages and that no increase in coal- in the Clinch and Powell Rivers in species once occurred at the confluence related sedimentation exists in streams Tennessee and Virginia (Bogan and of the French Broad and Holston Rivers. containing this species. Parmalee 1983, p. 45; Neves 1991, p. The species now survives at a few 277). It possibly survives in the Green The Cumberlandian combshell shoals in the Powell River in Tennessee River in Kentucky and in the Tennessee (Epioblasma brevidens) (Lea 1831) was and Virginia and the Elk and Duck River, below Pickwick Dam, in listed as an endangered species on Rivers in Tennessee (Service 1984d, p. Tennessee (Service 1991a). The January 10, 1997 (62 FR 1647). Critical 21). No downlisting criteria are given in downlisting objectives for the cracking habitat was designated for this species the recovery plan. The delisting pearlymussel (Service 1991a, p. 6) are on August 31, 2004 (69 FR 53136). We objectives for the Cumberland to: (1) Reestablish/discover five viable finalized a recovery plan for the species monkeyface (Service 1984d, pp. 21–22) populations; (2) ensure that one in May 2004 (Service 2004). We also are to: (1) Restore the viability of the naturally produced year class exists established an NEP for the Powell and Elk River populations; (2) within each population; (3) determine if Cumberlandian combshell and 15 other reestablish or discover viable recovery actions have been successful, federally listed mussels for a section of populations in two additional rivers; (3) as determined by an increase in the Tennessee River below the Wilson ensure that the species is protected from population density and/or an increase Dam in Colbert and Lauderdale present and foreseeable threats to the in length of river inhabited; and (4) Counties, Alabama, on June 14, 2001 (66 continued existence of any population; ensure there are no foreseeable threats FR 32250). This mussel was historically and (4) determine that noticeable to the continued existence of any distributed throughout much of the improvements in coal-related problems population. The delisting objectives call Cumberlandian Region of the Tennessee and substrate quality have occurred in for the reestablishment/discovery of and Cumberland River drainages in the Powell River and that no increase in eight viable populations and two Alabama, Kentucky, Tennessee, and coal-related sedimentation occurs in the naturally produced year classes within Virginia (Gordon 1991, p. 2). Currently, Clinch River. each population. populations survive in a few river The dromedary pearlymussel (Dromus The Cumberland bean (pearlymussel) reaches in both river systems (Gordon dromas) (Lea 1845) was listed as an (Villosa trabalis) (Conrad 1834) was 1991, p. 2). It historically occurred in endangered species on June 14, 1976 (41 listed as an endangered species on June the lower Holston River and a French FR 24062). We completed a recovery 14, 1976 (41 FR 24064). We finalized a Broad River tributary (Nolichucky plan for the species in July 1984 recovery plan for the species in August River) (Parmalee and Bogan 1998, p. 84). (Service 1984e). We also established an 1984 (Service 1984c). We also Archaeological records (Parmalee 1988, NEP for the dromedary pearlymussel

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and 15 other federally listed mussels for (Service 1991b, pp. 2–4). The population, and (4) determine that a section of the Tennessee River below downlisting objectives for the fanshell noticeable improvements in coal-related the Wilson Dam in Colbert and (Service 1991b, pp. 6–7) are to: (1) problems and substrate quality have Lauderdale Counties, Alabama, on June Protect existing populations, reestablish occurred in the Powell River and that no 14, 2001 (66 FR 32250). It was historical populations, and/or discover increase in coal or other energy-related historically widespread in the new populations so that at least nine impacts occurs in the Clinch River. Cumberland and Tennessee River distinct viable populations exist; (2) The orangefoot pimpleback systems (Bogan and Parmalee 1983, p. ensure that one naturally reproduced (pearlymussel) (Plethobasus 16). Parmalee and Bogan (1998, p. 71) year class exists within each of the nine cooperianus) (Lea 1834) was listed as an reported that the species historically populations; and (3) ensure that studies endangered species on June 14, 1976 (41 occurred in the lower Holston River in of the species’ biological and ecological FR 24062). We completed a recovery Knox and Grainger Counties. requirements are complete and that any plan for the species in August 1984 Archaeological records of this species required recovery measures are (Service 1984g). It historically occurred exist from the Little Pigeon River, a beginning to succeed. The delisting in the Ohio, Cumberland, and lower French Broad River tributary objectives are to: (1) Protect existing Tennessee River systems, including the (Parmalee 1988, p. 172). It survives at a populations, reestablish historical lower French Broad and Holston Rivers few shoals in the Powell and Clinch populations, and/or discover new (Parmalee and Bogan 1998, p. 174). The Rivers in Tennessee and Virginia and populations so that at least 12 distinct species persists in the lower Ohio, possibly in the Cumberland River in viable populations exist; (2) ensure that Tennessee, and Cumberland Rivers Tennessee (Service 1984e, pp. 3–8; two distinct naturally reproduced year (Service 1984g, pp. 2–6). In 2005, three Neves 1991, p. 293). No downlisting classes exist within each viable adults were taken from the Ohio River criteria are given in the recovery plan. population; (3) ensure that studies of the and moved to the Kentucky Department The delisting objectives for the species’ biological and ecological of Fish and Wildlife Resources’ dromedary pearlymussel (Service 1984e, requirements are complete and that any propagation facility in Frankfort, pp. 20–21) are to: (1) Restore the required recovery measures are Kentucky (Leroy Koch 2005). No viability of the Clinch and Powell River successful; (4) ensure that no downlisting criteria are given in this populations; (2) reestablish or discover foreseeable threats exist that would recovery plan. The delisting objectives viable populations in three additional likely impact the species’ survival over for the orangefoot pimpleback (Service rivers; (3) ensure that the species is a significant portion of its range; and (5) 1984g, pp. 13–14) are to ensure that: (1) protected from present and foreseeable ensure that noticeable improvements in One viable population exists in the threats to the continued existence of any water and substratum quality have Tennessee, Cumberland, and Ohio population; and (4) determine that occurred where habitat has been Rivers and these populations are noticeable improvements in coal-related degraded. dispersed throughout each river so that it would be unlikely for any one event problems and substrate quality have The fine-rayed pigtoe (Fusconaia occurred in the Powell River and that no to cause the total loss of any population; cuneolus) (Lea 1840) was listed as an (2) viable populations are reestablished increase in coal-related sedimentation endangered species on June 14, 1976 (41 occurs in the Clinch River. or discovered in two additional rivers; FR 24062). We finalized a recovery plan (3) three year classes, including one year The fanshell (Cyprogenia stegaria) for the species in September 1984 class 10 years old or older, have (Rafinesque 1820) was listed as an (Service 1984f). We also established an naturally produced in each population; endangered species on June 21, 1990 (55 NEP for the fine-rayed pigtoe and 15 (4) no foreseeable threats exist that FR 25591). We completed a recovery other federally listed mussels for a would interfere with the survival of any plan for the species in July 1991 section of the Tennessee River below population; and (5) noticeable (Service 1991b). It historically occurred the Wilson Dam in Colbert and improvements in water and substratum in the Ohio River and many of its large Lauderdale Counties, Alabama, on June quality have occurred where habitat has tributaries in Pennsylvania, West 14, 2001 (66 FR 32250). It historically been degraded. Virginia, Ohio, Indiana, Illinois, occurred in 15 Tennessee River The oyster mussel (Epioblasma Kentucky, Alabama, Virginia, and tributaries (including the lower Holston capsaeformis) (Lea 1834) was listed as Tennessee (Service 1991b). Ortmann River) and is currently known from 7 an endangered species on January 10, (1918, p. 565) reported it from the lower rivers (including the Nolichucky River, 1997 (62 FR 1647). Critical habitat was Holston River, and Parmalee and Bogan a French Broad River tributary, above designated for this species on August (1998, p. 70) reported it from the backwaters of Douglas Reservoir) 31, 2004 (69 FR 53136). We finalized a archaeological sites in the lower French (Service 1984f, pp. 2–4, Parmalee and recovery plan for the species in May Broad River and its tributary, the Little Bogan 1998, pp. 115–116). No 2004 (Service 2004). We also established Pigeon River. Presently, the fanshell is downlisting criteria are given in the an NEP for the oyster mussel and 15 believed to be reproducing in three recovery plan. The delisting objectives other federally listed mussels for a rivers: the Green and Licking Rivers in for the fine-rayed pigtoe (Service 1984f, section of the Tennessee River below Kentucky and the Clinch River in pp. 22–24) are to: (1) Restore viable the Wilson Dam in Colbert and Tennessee and Virginia. Additionally, populations to the Clinch, Powell, and Lauderdale Counties, Alabama, on June based on the collection of a few old North Fork Holston Rivers, to the Little 14, 2001 (66 FR 32250). This mussel specimens in the 1980s, small, River and Copper Creek (Clinch River historically occurred throughout much apparently nonreproducing, populations tributaries), and to the Elk River of the Cumberlandian Region of the may still persist in the Muskingum and (Tennessee), Sequatchie River Tennessee and Cumberland River Walhonding Rivers in Ohio, the (Tennessee), and the Paint Rock River drainages (Gordon 1991, pp. 2–3). Small Kanawha River in West Virginia, the (Alabama); (2) reestablish or discover populations now survive in a few river Wabash River system in Illinois and one viable population in an additional reaches in both river systems (Gordon Indiana, the Barren River and Tygarts river; (3) ensure that the species is 1991, pp. 2–3). It was historically taken Creek in Kentucky, and the Tennessee protected from present and foreseeable in the lower French Broad River near its and Cumberland Rivers in Tennessee threats to the continued existence of any confluence with the Holston, and a

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population still survives in the measures developed and implemented Dam in Colbert and Lauderdale Nolichucky River, a French Broad River from these studies are beginning to Counties, Alabama, on June 14, 2001 (66 tributary, above Douglas Reservoir succeed. The delisting objectives are to: FR 32250). It historically occurred in the (Parmalee and Bogan 1998, p. 86). (1) Protect existing populations, Tennessee River and 10 of its tributaries Archaeological records (Parmalee 1988, reestablish historical populations, and/ (Service 1984i, pp. 2–4). It is currently pp. 170–171) of this species exist from or discover new populations so that at known from five river systems: the the Little Pigeon River, a lower French least nine distinct populations exist; (2) Clinch, Powell, North Fork Holston, Elk, Broad River tributary. The downlisting ensure that studies of the species’ and Paint Rock (Service 1984i, pp. 4–8). objectives for the oyster mussel (Service biological and ecological requirements It was historically reported from the 2004, pp. 65–68) call for the are complete and that any required Tennessee River around the mouth of reestablishment/discovery of six viable recovery measures developed and the Holston and French Broad Rivers, populations and one naturally implemented from these studies are and it still occurs in the North Fork reproducing year class within each successful; (3) ensure that no Holston River (a Holston River tributary) viable population. The delisting foreseeable threats exist that would above Cherokee Reservoir (Service objectives are to: (1) Reestablish or likely impact the species’ survival over 1984i, pp. 2–4, Parmalee and Bogan discover viable populations in nine a significant portion of its range; and (4) 1998, p. 113). No downlisting criteria distinct streams in the Cumberland ensure that noticeable improvements in are given in the recovery plan. The River system, upper Tennessee River water and substratum quality have delisting objectives for the shiny pigtoe system, and/or lower Tennessee River occurred where habitat has been (Service 1984i, pp. 23–25) are to: (1) system; (2) ensure that the species is degraded. Restore viable populations to the protected from present and foreseeable The rough pigtoe (Pleurobema Clinch, Elk, Powell, North Fork Holston, threats to the continued existence of any plenum) (Lea 1840) was listed as an and Paint Rock Rivers and to Copper population; and (3) ensure that two endangered species on June 14, 1976 (41 Creek; (2) reestablish or discover one distinct naturally reproducing year FR 24062). We completed a recovery viable population in one additional classes exist within each of the viable plan for the species in August 1984 river or two river corridors; (3) ensure populations. (Service 1984h). This widespread that the species is protected from species was historically known from 22 present and foreseeable threats to the The ring pink (mussel) (Obovaria rivers in the Mississippi and Ohio River continued existence of any population, retusa) (Lamark 1819) was listed as an systems (Service 1984h, pp. 2–3), and (4) determine that noticeable endangered species on September 29, including the lower French Broad and improvements in coal-related problems 1989 (54 FR 40109). We completed a Holston Rivers (Parmalee and Bogan and substrate quality have occurred in recovery plan for the species in March 1998, p. 189). Archaeological records the Powell River and that no increase in 1991 (Service 1991c). It historically (Parmalee 1988, p. 169) of this species coal or other energy-related impacts occurred in the Ohio River and many of exist from the Little Pigeon River (a occurs in the Clinch River. its large tributaries in Pennsylvania, lower French Broad River tributary). It The white wartyback (pearlymussel) West Virginia, Ohio, Indiana, Illinois, is currently known from the Green, (Plethobasus cicatricosus) (Say 1829) Kentucky, Alabama, and Tennessee Barren, Cumberland, Tennessee, and was listed as an endangered species on (Service 1991c, pp. 2–3). Ortmann Clinch Rivers (Parmalee and Bogan June 14, 1976 (41 FR 24062). We (1918, p. 567) and Parmalee and Bogan 1998, p. 189, Service 1984h, pp. 3–7). completed a recovery plan for the (1998, p. 166) reported it from the lower No downlisting criteria are given in this species in September 1984 (Service Holston River, and it has been taken recovery plan. The delisting objectives 1984j). It occurred in the Ohio, from an archeological site on the lower for the rough pigtoe (Service 1984h, pp. Cumberland, and Tennessee River French Broad River (Ahlstedt 1998). It 14–15) are to: (1) Protect existing systems, including the lower Holston likely still survives in very low numbers populations, reestablish historical River (Parmalee and Bogan 1998, p. in the Green River in Kentucky, the populations, and/or discover new 172). It still persists in the middle Tennessee River in Tennessee and populations so that at least six distinct reaches of the Tennessee River (Service Kentucky, and the Cumberland River in populations exist; (2) ensure that these 1984j, pp. 4–5). No downlisting criteria Tennessee (Service 1991c, pp. 2–3, populations are dispersed throughout are given in this recovery plan. The Parmalee and Bogan 1998, p. 166). In each river so it would be unlikely for delisting objectives for the white 2004 and 2005, three juveniles and one any one event to cause the total loss of wartyback (Service 1984j, pp. 12–13) are adult male were found in the Green any population; (3) ensure that three to ensure that: (1) A viable population River (Leroy Koch 2005). The adult male year classes, including one year class 10 exists in the Tennessee River; (2) viable was taken to the Kentucky Department years old or older, have naturally populations are discovered or of Fish and Wildlife Resources’ produced in each population; (4) ensure reestablished in two additional rivers; (KDFWR) propagation facility in that no foreseeable threats exist that (3) these populations are dispersed so it Frankfort, Kentucky. KDFWR plans to would interfere with the survival of any is unlikely for any one event to cause propagate this species to augment population; and (5) ensure that the total loss of the species from that existing populations and establish new noticeable improvements in water and river system; (4) three year classes, ones, such as the lower French Broad substratum quality have occurred where including one year class 10 years old or and lower Holston Rivers. The habitat has been degraded. older, have been produced in each downlisting objectives for the ring pink The shiny pigtoe (Fusconaia cor) reestablished population; and (5) no (Service 1991c, pp. 4–5) are to: (1) (Conrad 1834) was listed as an foreseeable threats exist that would Protect existing populations, reestablish endangered species on June 14, 1976 (41 interfere with the survival of any historical populations, and/or discover FR 24062). We completed a recovery population. new populations so that at least six plan for the species in July 1984 Anthony’s riversnail (Athearnia distinct populations exist and (2) ensure (Service 1984i). We also established an anthonyi) (Budd in Redfield 1854) was that studies of the species’ biological NEP for the shiny pigtoe and 15 other listed as an endangered species on April and ecological requirements are federally listed mussels for a section of 15, 1994 (59 FR 17994). We completed complete and that any required recovery the Tennessee River below the Wilson a recovery plan for the species in

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August 1997 (Service 1997). We also apparently extirpated (Service 1994a, p. and Clinch Rivers in Tennessee. These established an NEP for Anthony’s 4). The Little River, Copper Creek/ river reaches are about 600 river miles riversnail and 16 federally listed Clinch River, and Big South Fork apart. No historical records exist for the mussels for a section of the Tennessee Cumberland River populations are fish in the lower French Broad or lower River below the Wilson Dam in Colbert extant but small and their viability is Holston Rivers. However, we and others and Lauderdale Counties, Alabama, on uncertain (Service 1994a, pp. 4–5). The believe it is likely that it once inhabited June 14, 2001 (66 FR 32250). This snail Citico Creek population is healthy and these waters (Rakes and Shute 1999, p. was historically found in the Tennessee viable (Shute 2005). CFI has 5). Our conclusion is based on the same River and the lower reaches of some of reintroduced the species into Abrams facts outlined above for the duskytail its tributaries from Muscle Shoals, Creek in Tennessee, and there are darter. The downlisting objectives for Colbert and Lauderdale Counties, indications that it is becoming the pygmy madtom (Service 1994b, p. 5) Alabama, upstream into the lower reestablished (Rakes et al. 2005, p. 106). are to: (1) Protect and enhance existing French Broad River (Bogan and No historical records exist for the fish in populations so that at least two distinct Parmalee 1983, pp. 81–82, Service 1997, the lower French Broad or lower viable populations exist; (2) ensure that pp. 1–2). Currently, two populations are Holston Rivers. However, we and others studies of the species’ biological and known: one in Limestone Creek in believe it is likely that the species once ecological requirements are complete Limestone County, Alabama, and one in inhabited these waters (Rakes and Shute and that any required recovery measures the Tennessee River and the lower 1999, p. 5). Our conclusion is based on developed and implemented from these portion of the Sequatchie River (a the following facts: (1) The species was studies are beginning to succeed; and (3) tributary to this reach of the Tennessee once likely much more widespread in ensure that no foreseeable threats exist River) in Tennessee and Alabama the Tennessee River system, (2) the that would likely impact the survival of (Service 1997, p. 2). The downlisting French Broad and Holston Rivers are the two aforementioned viable objectives for Anthony’s riversnail tributaries to the Tennessee River populations. No delisting criteria are (Service 1997, p. 5–6) are to ensure that: between existing and historical given in this recovery plan. (1) Four viable populations exist; (2) populations, (3) both river reaches The slender chub (Erimystax cahni) two naturally produced year classes appear to contain suitable habitat for the (Hubbs and Crowe 1956) was listed as exist in all four populations; (3) species, and (4) there were no physical a threatened species on September 9, biological studies on the species are barriers that would have prevented the 1977, with critical habitat and a special completed and recovery measures are species from inhabiting these waters. rule (42 FR 45526). We completed a beginning to succeed; (4) noticeable The downlisting objectives for the recovery plan for the species in July improvements in water and substratum duskytail darter (Service 1994a, pp. 7– 1983 (Service 1983a). It was historically quality have occurred where habitat is 8) are to: (1) Protect and enhance known from the Clinch, Powell, and degraded; (5) each population is existing populations and reestablish a Holston Rivers (Service 1983a, pp. 2–3). protected from present and foreseeable population so at least three distinct The Holston River site is now under the threats; and (6) all four populations viable duskytail darter populations Cherokee Reservoir. The species has not remain stable or increase over a 10-year exist; (2) ensure that studies of the been found recently in the Powell River, period. The delisting objectives call for species’ biological and ecological and its continued existence in the the establishment of six viable requirements are complete and that any Clinch River is represented by only one populations in addition to criteria (2) required recovery measures developed specimen taken in recent years (Rakes through (5) above. Additionally, all six and implemented from these studies are and Shute 2006, p. 1). However, populations should remain stable or beginning to succeed; and (3) ensure collections made over the years have increase over a 15-year period. that no foreseeable threats exist that generally shown that specimens can The duskytail darter (Etheostoma would likely threaten the continued often be taken only sporadically and in percnurum) (Jenkins 1994) was listed as existence of the three aforementioned very small numbers. There was an effort an endangered species on April 27, 1993 viable populations. The delisting to survey for the slender chub in 2004 (58 FR 25758). We completed a recovery objectives are to: (1) Protect and and 2005. No slender chubs were found, plan for the species in March 1994 enhance existing populations and but the surveyors felt confident that at (Service 1994a). We also established an reestablish populations so at least five least a few individuals may still survive NEP for the duskytail darter and three distinct viable duskytail darter in the Clinch River and a propagation other federally listed fishes for a section populations exist; (2) ensure that studies program could succeed (Rakes and of the Tellico River in Monroe County, of the species’ biological and ecological Shute 2006, p. 5). Additional surveys for Tennessee, on August 12, 2002 (67 FR requirements are complete and that any slender chubs are planned for 2007. 52420). Although likely once more required recovery measures developed Although the species has never been widespread in the upper Tennessee and and implemented from these studies are collected from the lower French Broad middle Cumberland River systems, successful; and (3) ensure that no system, we and others believe the duskytail darters were historically foreseeable threats exist that would species once likely inhabited these known from six populations: Little likely impact the survival of the five waters (Rakes and Shute 1999, pp. 3–5). River and Abrams Creek, Blount aforementioned viable populations. Our conclusion is based on the same County, Tennessee; Citico Creek, The pygmy madtom (Noturus facts outlined above for the duskytail Monroe County, Tennessee; Big South stanauli) (Etnier and Jenkins 1980) was darter. The delisting objectives for the Fork Cumberland River, Scott County, listed as an endangered species on April slender chub (Service 1983a, pp. 8–9) Tennessee, and McCreary County, 27, 1993 (58 FR 25758). We completed are to: (1) Protect and enhance existing Kentucky; Copper Creek and the Clinch a recovery plan for the species in populations and/or reestablish River (this is one population), Scott September 1994 (Service 1994b). The populations so that viable populations County, Virginia; and the South Fork pygmy madtom, which was likely more exist in the Clinch and Powell Rivers; Holston River, Sullivan County, Virginia widespread in the Tennessee River (2) ensure, through reintroductions and/ (Service 1994a, pp. 3–6). The South system, has been found, and still exists, or the discovery of new populations, Fork Holston River population is in only two short reaches of the Duck that one other viable population exists;

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(3) ensure that noticeable improvements 1977, with critical habitat and a special reestablishment of historical in coal-related problems and substrate rule (42 FR 45526). The critical habitat populations is a critical component in quality have occurred in the Powell map was corrected on September 22, the recovery of all these species. River and that there is no increase in 1977 (42 FR 47840). We completed a 4. Reintroduction Site: At the request coal-related sedimentation in the Clinch recovery plan for the species in June of the TVA and the TWRA, biologists River; and (4) protect the species from 1983 (Service 1983c). Two NEPs have from the Service, TVA, USGS, TWRA, threats that may adversely affect the been established for the yellowfin and Alabama Game and Fish Division survival of the populations. madtom. The first NEP was established evaluated Tennessee River basin rivers The spotfin chub (Erimonax for a section of the North Fork Holston for mollusk recovery potential. The monachus) (Cope 1868) was listed as a River in Washington County, Virginia, biologists rated the French Broad River threatened species on September 9, on August 4, 1988 (53 FR 29335). The downstream of Douglas Dam as having 1977, with critical habitat and a special second NEP was established for the a high potential for mollusk recovery rule (42 FR 45526). The critical habitat yellowfin madtom and three other and the Holston River below Cherokee map was corrected on September 22, federally listed fishes for a section of the Dam as having a medium potential 1977 (42 FR 47840). We completed a Tellico River in Monroe County, primarily due to water quality and flow recovery plan for the species in Tennessee, on August 12, 2002 (67 FR improvements to the tailwaters. In November 1983 (Service 1983b). Two 52420). It was historically known from letters dated May 28, 1998, and June 29, NEPs have been established for the only seven streams (Service 1983c, p. 2). 1998, the TWRA’s Executive Director spotfin chub. The first was established Four small extant populations still exist, recommended that we consider for the spotfin chub and three other one each in Citico Creek, Copper Creek, reintroducing endangered mussels into federally listed fishes for a section of the Clinch River, and the Powell River the French Broad River below Douglas Tellico River in Monroe County, (Rakes and Shute 2006a, pp. 2, 6). The Dam and the Holston River below Tennessee, on August 12, 2002 (67 FR species was reintroduced into Abrams Cherokee Dam under NEP status. In an 52420). The second was established for Creek, and the population is becoming October 30, 1998, letter, the TWRA the spotfin chub and the boulder darter reestablished (Shute et al. 2005, p. 106). provided us with a list of mussel species (Etheostoma wapiti) for a section of Reintroductions into the NEP section of (compiled by Tennessee mussel experts) Shoal Creek (a tributary to the the Tellico River are ongoing and early that historically or probably occurred in Tennessee River), Lauderdale County, results are promising (Rakes and Shute these river reaches. In a December 9, Alabama, and Lawrence County, 2005, p. 13). Although there are no 1998, letter to us, the TVA (the Tennessee, on April 8, 2005 (70 FR historical records from the lower managers of the dams above the NEP for 17916). This once-widespread species Holston River or French Broad River hydroelectric power, flood control, and was historically known from 24 streams system, we and others believe that the recreation) expressed support for mussel in the upper and middle Tennessee species once likely inhabited these river recovery efforts in the Tennessee River River system. Currently, it is extant in reaches (Rakes and Shute 1999). Our valley streams and tailwaters. Based on successes in Abrams Creek only four rivers/river systems (Service conclusion is based on the same facts and CFI’s intimate knowledge of 1983b, pp. 2–4; P. Shute 2004; TVA outlined above for the duskytail darter. nongame fishes and their habitat needs, 2004). CFI has reintroduced the species The delisting objectives for the we contracted with them to survey the into Abrams Creek in Tennessee, and yellowfin madtom (Service 1983c, pp. lower French Broad River and there are indications that it has become 8–10) are to: (1) Protect and enhance reestablished (Rakes et al. 2005, p. 106). determine if we could expand our listed existing populations and/or reestablish Historical records exist for the species fish recovery efforts into this major populations so that viable populations in the upper French Broad and upper Tennessee River tributary. CFI exist in Copper Creek, Citico Creek, and Holston River systems, and the species determined that the lower French Broad the Powell River; (2) reestablish or still exists in the Holston River system River contains potential suitable habitat discover viable populations in two above the Cherokee Reservoir (Service for the reintroduction of the duskytail additional rivers; (3) ensure that 1983b, pp. 2–14). We and our partners darter, pygmy madtom, spotfin chub, noticeable improvements in coal-related believe the species once likely inhabited and yellowfin madtom (Rakes and Shute problems and substrate quality have the waters of the lower French Broad 1999, pp. 2–4). Additionally, Rakes and occurred in the Powell River; and (4) and lower Holston Rivers. Our Shute (2004) stated that the lower conclusion is based on the same facts ensure that each population is protected Holston River below Cherokee Dam outlined above for the duskytail darter. from present and foreseeable threats. could potentially support a The delisting objectives for the spotfin The recovery objectives in the reintroduced population of these fishes chub (Service 1983b, pp. 19–20) are to: recovery plans for all of the 21 species and that both river reaches contain (1) Protect and enhance existing generally agree that, to reach recovery: potential habitat for slender chub populations and/or reestablish (1) Existing populations should be reintroductions. populations so that viable populations restored to viable levels; (2) the species In a May 17, 1999, letter to us, the exist in the Buffalo River system, upper should be protected from threats to their TWRA’s Executive Director stated that Little Tennessee River, Emory River continued existence; and (3) viable he concurred with the conclusions in system, and lower North Fork Holston populations should be reestablished in the report prepared by Rakes and Shute River; (2) ensure, through reintroduction historical habitat. The number of secure, (1999). He recommended that we and/or the discovery of two new viable populations needed to achieve consider designating NEP status in the populations, that viable populations recovery (existing and restored) varies lower French Broad and Holston Rivers exist in two other rivers; and (3) ensure from species to species, depending on for the eventual reintroduction of these that no present or foreseeable threats the extent of the species’ probable five fish species. exist that would likely impact the former range (i.e., historically We previously established NEPs for survival of any populations. widespread species require a greater the birdwing pearlymussel, cracking The yellowfin madtom (Noturus number of populations for recovery than pearlymussel, Cumberland bean, flavipinnis) (Taylor 1969) was listed as species with historically more restricted Cumberlandian combshell, Cumberland a threatened species on September 9, distributions). However, the monkeyface, fine-rayed pigtoe, oyster

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mussel, shiny pigtoe, and Anthony’s reintroductions. None of these 21 will likely come from the Powell River riversnail in the free-flowing reach of species are known to currently exist in in Tennessee. Spotfin chubs will likely the Tennessee River below the Wilson these river reaches, in tributaries to come from upstream in the Holston Dam in Colbert and Lauderdale these reaches, or have free access to River system above Cherokee Dam in Counties, Alabama (66 FR 32250, June these reaches. Tennessee. Pygmy madtoms will come 14, 2001). In October 2003, 80 each of 5. Reintroduction Procedures: The from the Clinch River in Tennessee. birdwing pearlymussels, oyster mussels, dates for these reintroductions, the Slender chubs will come from the upper and dromedary mussels (dromedary actual number of individuals to be Tennessee River basin in Tennessee and mussels are not part of the Lower released, and the specific release sites Virginia. In some cases, the parents will French Broad/Lower Holston NEP) and cannot be determined at this time. be returned to the wild population from 2,370 Anthony’s riversnails were placed Mussel propagation and juvenile which they were taken. However, in in the NEP area below Wilson Dam. The rearing technology are currently being most cases, adult fishes will be status of these reintroduced mussels refined (Jones et al. 2005). Genetic permanently relocated to propagation was checked during the summer of 2004 management guidelines for captive facilities. and 2005. While it is too early to propagation of freshwater mussels have To help ensure the genetic integrity of determine whether or not the also recently been developed (Jones et the reintroduced species and to match reintroduced individuals will become al. 2006). Juvenile mussels of some as closely as possible the genetic an established population, a significant species could be available for composition of the historical number of them have survived thus far, reintroduction soon after this NEP rule populations, we will observe the indicating that the reintroduction has a is finalized. Individual endangered following guidelines: (1) To reduce good chance of being successful. mussels that would be used for these homozygosity, at least 10 gravid female Establishment of viable populations of reintroductions will be primarily mussels, 10 fishes, and 10 snails, these species in both the Tennessee artificially propagated juveniles. whenever possible, will be used as River below the Wilson Dam under the However, it is possible that wild adult parental stock over the life of the existing regulation and in the lower stock of some mussels could also be reintroduction project (if this number French Broad and lower Holston Rivers, released into the area. The parent stock cannot be obtained for very rare species, through this regulation, is an objective for mussel propagation will come from we will use whatever number is in the recovery of these species. existing wild populations in the available) and (2) to match as closely as However, it will take several years of Tennessee, Cumberland, and Ohio possible the genetic composition of the monitoring to fully evaluate if Rivers, and in most cases, adults will be species that once existed in the lower populations of these species (and the returned to the capture site. Under some French Broad and Holston Rivers, the other species) have become established circumstances, adult endangered adults and brood stock for the and remain viable in these historic river mussels could be permanently relocated reintroductions will be collected using reaches. (i.e., kept in captivity for their entire the following criteria (in order of Based on the presence of suitable life) to propagation facilities or moved decreasing importance): (a) Donor physical habitat, the positive response directly into the NEP area after being animals will be collected from of endemic aquatic species to habitat used for propagation purposes. A permit populations in adjacent stream/tributary improvements, improved quality of the under section 10 of the ESA would be systems in the same physiographic water being released from the dams, the needed for handling and maintaining province, (b) donor animals will be recommendations of the TWRA’s threatened and endangered species in collected from populations in adjacent Executive Director, and the evaluation captivity. stream/tributary systems in an adjacent of biologists familiar with the lower Anthony’s riversnails will likely be physiographic province, and (c) donor French Broad and Holston Rivers, we collected for the reintroductions from a animals will be collected from the only believe the French Broad River large naturally reproducing population population with a sufficient number of (downstream of Douglas Dam) and the located in Limestone Creek, Limestone adults to produce progeny. Holston River (downstream of Cherokee County, Alabama, and relocated directly The permanent removal of adults Dam) appear suitable for the into the NEP. (mollusks and fishes) from the wild for reintroduction of these 21 species with Individual fishes that would be used their use in reintroduction efforts is NEP status. for these reintroductions will be allowable when the following We plan to reintroduce these 21 primarily artificially propagated conditions exist: (1) Sufficient numbers species into historical habitat in the juveniles. However, it is possible that of adults are available within a donor free-flowing reach of the French Broad wild adult stock of some fishes could population to sustain the loss without River from RM 22.3 (35.7 km) also be released into the NEP area. jeopardizing the species; (2) the species (approximately 10 RM (16 km) below Propagation and juvenile rearing must be removed from an area because Douglas Dam), Knox and Sevier technology is available for the spotfin of an imminent threat that is likely to Counties, Tennessee, to the backwaters chub, slender chub, and duskytail eliminate the population or specific of Fort Loudoun Reservoir, upstream of, darter. Limited numbers of yellowfin individuals present in an area; or (3) but near the confluence with the madtom juveniles can be reared using when the population is not reproducing Holston River, Knox County, Tennessee, eggs and larvae taken from the wild, and (see 50 CFR § 17.22). For these 21 and in the free-flowing reach of the some pygmy madtoms can be species, it is most likely that adults will Holston River, Knox, Grainger, and propagated. However, madtom be permanently removed because of the Jefferson Counties, Tennessee, from propagation technology, which is first condition. However, fewer adults above the backwaters of Fort Loudoun needed to produce large numbers of will be needed for propagation than for Reservoir just upstream of its juvenile madtoms, needs further actually moving individuals from a confluence with the French Broad River, development. The parental stock for fish donor population to the NEP. An upstream to RM 42.3 (67.7 km) propagation and reintroductions will enhancement of propagation or survival (approximately 10 RM (16 km) below come from wild populations. Duskytail permit under section 10(a)(1)(A) of the Cherokee Dam). These river reaches darters will likely come from Little Act must be issued before any take contain the most suitable habitat for the River in Tennessee. Yellowfin madtoms occurs. We will coordinate these actions

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with the Service’s appropriate lead area. In that case, we may propose to designation. The NEP designation will regions and State natural resources amend this rule and enlarge the not require the TWRA or the TVA to agencies. boundaries of the NEP area to include specifically manage for reintroduced 6. Status of Reintroduced the entire range of the expanded species in the NEP area. Private Populations: Previous translocations, population(s). landowners within the NEP area will propagations, and reintroductions of The designated NEP area for the still be allowed to continue all legal many of these species have not affected duskytail darter, spotfin chub, and agricultural and recreational activities. their wild populations. The use of yellowfin madtom in the Tellico River Because of the substantial regulatory artificially propagated juveniles will (67 FR 52420, August 12, 2002) does not relief provided by NEP designations, we further reduce the potential effects on overlap or interfere with this NEP area do not believe these reintroductions will wild populations since fewer adults for the lower French Broad and lower conflict with existing human activities would be needed from the donor Holston Rivers in Tennessee because or hinder public use of the NEP area. population. If any of the reintroduced they are geographically separated river The Service, State, TVA, and CFI staff populations become established and are reaches. The designated NEP for the will all be involved in the management subsequently lost, the likelihood of the spotfin chub in Shoal Creek, Tennessee, of the reintroductions. They will closely species’ survival in the wild would not (67 FR 17916) does not overlap or coordinate on reintroductions, be appreciably reduced because either interfere with this NEP area for the monitoring, coordination with the reintroduced individuals will be lower French Broad and lower Holston landowners and land managers, and from propagated stock or the donor Rivers in Tennessee because they are public awareness, among other tasks population will be of sufficient size to geographically separated river reaches. necessary to ensure successful handle movement of adults. Therefore, Similarly, the NEP for the yellowfin reintroductions of these species. we have determined that the madtom in the North Fork Holston River (a) Mortality: The regulations reintroduced populations of these 21 (53 FR 29335, August 4, 1998) is implementing the Act define species in the lower French Broad and separated by reservoirs and long ‘‘incidental take’’ as take that is Holston Rivers are not essential to the stretches of river that do not contain incidental to, and not the purpose of, continued existence of these species. yellowfin madtoms or their habitat and the carrying out of an otherwise lawful We will ensure, through our section 10 act as effective barriers between madtom activity (50 CFR 17.3) such as recreation permit authority and the section 7 populations in the North Fork Holston (e.g., fishing, boating, wading, trapping, consultation process, that the use of River and the NEP in the lower Holston or swimming), forestry, agriculture, and animals from any donor population for River. other activities that are in accordance these reintroductions is not likely to The designated NEP area for the with Federal, Tribal, State, and local jeopardize the continued existence of birdwing pearlymussel, cracking laws and regulations. A person may take the species. pearlymussel, Cumberland bean, a listed species within the experimental 7. Location of Reintroduced Cumberlandian combshell, Cumberland population area provided that the take Population: The NEP area, which monkeyface, dromedary pearlymussel, is unintentional and is not due to encompasses all the sites for the fine-rayed pigtoe, oyster mussel, shiny negligent conduct. However, when we reintroductions, will extend from the pigtoe, tubercled blossom, and have evidence of knowing (i.e., base of Douglas Dam down the French Anthony’s riversnail in the Tennessee intentional) take of the listed species Broad River, Knox and Sevier Counties, River below the Wilson Dam (66 FR within the NEP, we will refer matters to Tennessee, to its confluence with the 32250, June 14, 2001) in Alabama does the authorities, which in most cases for Holston River and then up the Holston not overlap or interfere with this NEP these reintroduced species would be the River, Knox, Grainger, and Jefferson area for the lower French Broad and State agency, TWRA, for appropriate Counties, Tennessee, to the base of lower Holston Rivers in Tennessee action. We expect levels of incidental Cherokee Dam and also will include the because they are geographically take to be low since the reintroduction lower 5 RM (8 km) of all tributaries that separated river reaches with several is compatible with existing human use enter these river reaches. Section 10(j) of reservoirs between them. activities and practices for the area. the Act requires that an experimental Critical habitat has been designed for (b) Special Handling: Service population be geographically separate Cumberlandian combshell and oyster employees and authorized agents acting from other wild populations of the same mussel (69 FR 53136, August 31, 2004), on their behalf may handle these 21 species. The NEP area is totally isolated and the slender chub, spotfin chub, and species for scientific purposes; to from existing populations of these yellowfin madtom (42 FR 45526, relocate them to avoid conflict with species by large reservoirs, and none of September 9, 1977); however, none of human activities; for recovery purposes; these species are known to occur in, or these designations include the NEP area. to relocate them to other reintroduction are likely to move through, large Critical habitat has not been designated sites; to aid sick or injured individuals; reservoir habitat. Therefore, these for the 16 other species identified in this and to salvage dead individuals. reservoirs will act as barriers to the rule. Section 10(j)(2)(C)(ii) of the Act (c) Coordination with landowners and expansion of these species into other states that critical habitat shall not be land managers: The Service and sections of the Tennessee River basin designated for any experimental cooperators identified issues and and will ensure that the NEPs remain population that is determined to be concerns associated with the geographically isolated and easily nonessential. Accordingly, we cannot reintroduction of these 21 species before distinguishable from existing wild designate critical habitat in areas where preparing this rule. The reintroduction populations. Based on the habitat we have already established, by also has been discussed with potentially requirements of these mollusks and regulation, a nonessential experimental affected State agencies, businesses, and fishes, we do not expect them to become population. landowners within the release area. established outside the NEP area. 8. Management: The aquatic resources Affected State agencies, businesses, However, if any of the reintroduced in the reintroduction area are managed landowners, and land managers, species move outside the designated by the TWRA and the TVA. Multiple- including the TWRA and TVA, have NEP area, then the animals would be use management of these waters will not indicated support for the reintroduction, considered to have come from the NEP change as a result of the NEP if the species released in the

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experimental population area are circulate a separate notice regarding in Alabama at 50 CFR 17.85 by changing established as an NEP and if aquatic these fishes. In any case, through the the scientific name for the birdwing resource activities in the experimental proposed rule, the public was given the pearlymussel from Conradilla caelata to population area are not constrained. opportunity to comment on the NEP Lemiox rimosus (see Regulation (d) Potential for conflict with human designation for these fishes (see Promulgation section below). activities: We do not believe these Summary of Comments and We are also making editorial changes reintroductions will conflict with Recommendations Section below). to 50 CFR 17.84(m) and 17.84(o). These existing or human activities or hinder We have informed the general public paragraphs currently provide NEP public use of the NEP area within the of the importance of this reintroduction information for multiple species; French Broad and Holston Rivers. project in the overall recovery of these § 17.84(m) sets forth the Tellico River Experimental population special rules 21 species. The designation of the NEP NEP area for spotfin chub, duskytail contain all the prohibitions and for these reaches of the French Broad darter, and smoky madtom, while exceptions regarding the taking of and Holston Rivers will provide greater § 17.84 (o) sets forth the Shoal Creek individual animals. These special rules flexibility in the management of these NEP area for spotfin chub and boulder are compatible with routine human reintroduced species. The NEP darter. In this final rule, we reformat activities in the reintroduction area. designation is necessary to secure this information into species-specific (e) Monitoring: After the initial needed cooperation of the States, Tribes, paragraphs, so that each fish species has stocking of these species, we will landowners, agencies, and other its own NEP paragraph. These changes monitor annually their presence or interests in the affected area. are nonsubstantive; no existing NEP absence and document any spawning areas would change as a result of the Finding behavior or young-of-the-year that might reformatting. The changes are simply for be present. This monitoring will be Based on the above information, and clarity and consistency, and to make conducted primarily by snorkeling or using the best scientific and commercial information easier for the public to find. seining and will be accomplished by data available (in accordance with 50 Finally, we are also making editorial contracting with the appropriate species CFR 17.81), the Service finds that changes to replace the introductory text experts. Annual reports will be releasing the Appalachian monkeyface, at 50 CFR 17.85(a) with a table for produced detailing the stocking rates birdwing pearlymussel, cracking clarity. Again, this is a nonsubstantive and monitoring activities that took place pearlymussel, Cumberland bean, change; no existing NEP areas would during the previous year. We will also Cumberlandian combshell, Cumberland change as a result of the reformatting. fully evaluate these reintroduction monkeyface, dromedary pearlymussel, Summary of Comments and efforts after 5 and 10 years to determine fanshell, fine-rayed pigtoe, orange-foot Recommendations whether to continue or terminate the pimpleback, oyster mussel, ring pink, reintroduction efforts. rough pigtoe, shiny pigtoe, white In the June 13, 2006, proposed rule (f) Public awareness and cooperation: wartyback, Anthony’s riversnail, (71 FR 34196), we requested that all On January 12, 1999, we mailed letters duskytail darter, pygmy madtom, interested parties submit comments or to 47 potentially affected congressional slender chub, spotfin chub, and information concerning the proposed offices, Federal and State agencies, local yellowfin madtom into the lower French NEP. We contacted appropriate Federal, governments, and interested parties to Broad and lower Holston Rivers State, and local agencies, county notify them that we were considering Experimental Population Area under an governments, elected officials, scientific proposing NEP status in the lower NEP designation will further the organizations, and other interested French Broad and Holston Rivers for the conservation of these species. parties and invited them to comment on 16 mollusks (at the time of this letter, the proposed NEP. We also provided Other Changes to the Regulations we had not yet decided to propose the notification of this document through fish reintroductions). We received one In addition, we are making a minor email, telephone calls, letters, and news written response. The Tennessee technical correction to the existing releases faxed and/or mailed to affected Department of Environment and regulation regarding the birdwing elected officials, media outlets, local Conservation supported the pearlymussel. The birdwing jurisdictions, and interested groups. We reintroduction of the mollusks under pearlymussel was listed on June 14, provided the document on the Service’s NEP status. It stated that NEP status 1976 (41 FR 24062), under the scientific Cookeville Field Office Internet site represents an appropriate step toward name of Conradilla caelata. The current following its release. promoting the species’ recovery while list of endangered and threatened During the public comment period, protecting the rights and privileges of species at 50 CFR 17.11(h) uses the we received comments from four Tennessee’s citizens. scientific name of Conradilla caelata for parties: One federal agency and three We did not circulate a similar notice the birdwing pearlymussel. In the latest universities. All four parties supported regarding the potential of proposing edition of the Common and Scientific the NEP. The three university parties NEP status for the five fishes. The report Names of Aquatic Invertebrates from the were peer reviewers (see below). The on the area’s suitability for fish United States and Canada published by federal agency, Tennessee Valley reintroductions (Rakes and Shute 1999) the American Fisheries Society, the Authority, operates the two dams on the was not available when the mollusk scientific name has been changed to lower French Broad and lower Holston notice was circulated. However, since Lemiox rimosus (Turgeon et al. 1998). Rivers. TWRA did not provide we received only one comment on the This name change has occurred in a comments during the public comment mollusk notice, the TWRA and the TVA peer-reviewed publication and has period but remain supportive of this both support the mollusk and fish acceptance in the scientific community. effort. reintroductions under NEP status, and Therefore, we are correcting the text for In conformance with our policy on the inclusion of these fishes in the the current list of endangered and peer review, published on July 1, 1994 proposal would not result in any threatened species at 50 CFR 17.11(h) (59 FR 34270), we solicited independent additional impact to public or and the existing experimental opinions from four knowledgeable government agency use of the river, we population in the free-flowing reach of individuals who have expertise with did not believe it was necessary to the Tennessee River below Wilson Dam these species within the geographic

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region where the species occur, and/or contradictory to the ‘‘best available could be some movement in and out of familiarity with the principles of science.’’ these areas. In order to provide conservation biology. We received Response: The table lists all the regulatory relief, should any of these comments from three of the four peer mollusk species that are included in the species move into these areas, we would reviewers. These are included in the existing NEP below Wilson Dam in the have to designate the area as being part summary below and incorporated into Tennessee River (66 FR 32250, June 14, of the NEP. For this reason, we are going this final rule. 2001). We realize that some of these to leave the limits of the NEP as We reviewed all comments received species (in particular the tubercled originally drafted to include the free- from the peer reviewers and the public blossom, turgid blossom, and yellow flowing reach of the French Broad River for substantive issues and new blossom pearlymussels) have not been below Douglas Dam to its confluence information regarding the proposed found alive in 20 years or longer and with the Holston River and the free- NEP. Substantive comments received that many experts believe that they may flowing reach of the Holston River during the comment period have either indeed be extinct. On the other hand, below Cherokee Dam to its confluence been addressed below or incorporated mussels can be found after a long time with the French Broad River. directly into this final rule. The of not being seen in collection records comments are grouped below as either and, presently, the Service has not Required Determinations peer review or public comments. declared any of these species extinct. Regulatory Planning and Review (E.O. These mussels are not part of this final 12866) Peer Review Comments action being set forth for the lower In accordance with the criteria in (1) Comment: A recent publication French Broad and lower Holston Rivers. Executive Order 12866, this rule to entitled ‘‘Restoration and colonization However, the Service has initiated 5- of freshwater mussels and fish in a year reviews for each of these mussels designate NEP status for and southeastern United States tailwater’’ by (70 FR 55157, September 20, 2005) and reintroduce 15 endangered mussels, 1 Layzer and Scott (2005) should be cited is in the process of assessing the endangered aquatic snail, 2 endangered in lieu of some of the personal mussels’ listed status under the Act. If fishes, and 3 threatened fishes in the communications. a change in status is recommended free-flowing reach of the French Broad Response: We have added this based on the review conducted, the River below Douglas Dam to its citation to the document where Service would be required to go through confluence with the Holston River, appropriate. a separate rulemaking process to Knox County, Tennessee, and in the (2) Comment: Continued operation of formally change a species’ listed status. free-flowing reach of the Holston River the dams as peaking hydroelectric At that time, the Service would consider below Cherokee Dam to its confluence projects will further hinder associated existing regulations for the with the French Broad River is not a recolonization of the mid-water fish respective species and determine if significant regulatory action subject to species and reduce the likelihood of corrections are necessary. Office of Management and Budget establishing populations of some of the review. This rule will not have an mussel species that rely on them as Public Comments annual economic effect of $100 million glochidial hosts. (5) Comment: The ‘‘accidental and or more on the economy and will not Response: TVA continues to improve incidental take’’ provision should be have an adverse effect on any economic the conditions of the tailwaters below expanded to state that any take as a sector, productivity, competition, jobs, the two dams. We acknowledge that result of TVA’s operation of its the environment, or other units of more work needs to be done to reduce multipurpose dams and associated government. The area affected by this the peak flows in both intensity and works (e.g., fluctuation of flows, rule consists of a very limited and duration. We will continue to work with adjustment of aeration systems) would discrete geographic segment of the TVA to accomplish that goal. In the be considered a permissible incidental lower French Broad River (about 32 RM meantime, mussel species that use take. (51 km)) and the lower Holston River benthic fishes as glochidial hosts, such Response: The rule clearly states that (about 52 RM (83 km)) in eastern as the oyster mussel and birdwing section 10(j) of the Act can provide Tennessee. Therefore, a cost-benefit and pearlymussel, can be reintroduced as regulatory relief with regard to the economic analysis will not be required. soon as this rule becomes final, since taking of reintroduced species within an We do not expect this rule to have their glochidial host fish species are NEP area. The rule allows for the taking significant impacts to existing human abundant in both rivers. of these reintroduced species when such activities (e.g., hydroelectric power (3) Comment: A recent publication take is incidental to an otherwise legal generation, flood control, agricultural entitled ‘‘Genetic management activity that is in accordance with activities, fishing, boating, wading, guidelines for captive propagation of Federal, State, and local laws and swimming, trapping) in the watershed. freshwater mussels (Unionoidea)’’ by regulations. This rule applies to any These rivers already have populations of Jones et al. (2006) should provide a legal activity TVA might undertake. the federally listed threatened snail citation for all genetic management (6) Comment: The upstream limits of darter (Percina tanasi) and endangered issues related to either translocation or the NEP should be reconsidered since pink mucket mussel (Lampsilis propagation of endangered freshwater areas immediately downstream of the abrupta), both of which require Federal mollusks. dams and for some distance agencies to consult with us under Response: We have added this downstream do not provide suitable section 7 of the Act if their activities citation to the document where habitat for any of these species due to may adversely affect these species. The appropriate. dam operations. reintroduction of these federally listed (4) Comment: Under 50 CFR 17.85, Response: We acknowledge that species, which will be accomplished Special rules—invertebrates, there are a presently the conditions below both under NEP status with its associated couple of extinct species listed in the dams (Cherokee and Douglas) are not regulatory relief, is not expected to table of NEP’s in the Tennessee River. sufficient to sustain viable populations impact Federal agency actions. Because This may be very confusing to the of these listed species. However, of the substantial regulatory relief, we public and perhaps be interpreted as particularly with the fish species, there do not believe the reintroduction of

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these species will conflict with existing productivity, innovation, or the ability to suffer a physical invasion of property or proposed human activities or hinder of United States-based enterprises to and (2) will not deny all economically public use of the French Broad or compete with foreign-based enterprises. beneficial or productive use of the land Holston Rivers. The intent of this special rule is to or aquatic resources. This rule will This rule will not create facilitate and continue the existing substantially advance a legitimate inconsistencies with other agencies’ commercial activity while providing for government interest (conservation and actions or otherwise interfere with an the conservation of species through recovery of listed freshwater mussel, action taken or planned by another reintroduction into suitable habitat. snail, and fish species) and will not agency. Federal agencies most interested present a barrier to all reasonable and Unfunded Mandates Reform Act in this rulemaking are primarily the expected beneficial use of private Environmental Protection Agency and The NEP designation will not place property. TVA. Both Federal agencies support the any additional requirements on any city, proposal. county, or other local municipality. The Federalism (E.O. 13132) This rule will not materially affect TWRA, which manages the fishes and In accordance with Executive Order entitlements, grants, user fees, or loan mollusks in the French Broad and 13132, this rule does not have programs, or the rights and obligations Holston Rivers, requested that we significant Federalism effects to warrant of their recipients. Because there are no consider these reintroductions under a the preparation of a Federalism expected impacts or restrictions to NEP designation. However, they will Assessment. This rule will not have existing human uses of the French not be required to specifically manage substantial direct effects on the States, Broad and Holston Rivers as a result of for any reintroduced species. in the relationship between the Federal this rule, no entitlements, grants, user Accordingly, this rule will not Government and the States, or on the fees, loan programs, or the rights and ‘‘significantly or uniquely’’ affect small distribution of power and obligations of their recipients are governments. A Small Government responsibilities among the various expected to occur. Agency Plan is not required since this levels of government. We have This rule does not raise novel legal or rulemaking does not require any action coordinated extensively with the State policy issues. Since 1984, we have to be taken by local or State government of Tennessee on the reintroduction of promulgated section 10(j) rules for many or private entities. We have determined these species into the French Broad and other listed species in various localities. and certify pursuant to the Unfunded Holston River systems. The State Such rules are designed to reduce the Mandates Reform Act, 2, U.S.C. 1502 et. wildlife agency in Tennessee (TWRA) regulatory burden that would otherwise seq., that this rulemaking will not requested that we undertake this exist when reintroducing listed species impose a cost of $100 million or more rulemaking in order to assist the State to the wild. in any given year on local or State in the restoration and recovery of its governments or private entities (i.e., it is native aquatic fauna. Achieving the Regulatory Flexibility Act not a ‘‘significant regulatory action’’ recovery goals for these species will The Department of the Interior under the Unfunded Mandates Reform contribute to their eventual delisting certifies that this document will not Act). and their return to State management. have a significant economic effect on a Takings (E.O. 12630) No intrusion on State policy or substantial number of small entities administration is expected; roles and under the Regulatory Flexibility Act (5 In accordance with Executive Order responsibilities of Federal or State U.S.C. 601 et seq.). Although most of the 12630, the rule does not have significant governments will not change; and fiscal identified entities are small businesses takings implications. When capacity will not be substantially engaged in activities along the affected reintroduced populations of federally directly affected. The special rule reaches of these rivers, this rulemaking listed species are designated as NEPs, operates to maintain the existing is not expected to have any significant the Act’s regulatory requirements relationship between the States and the impact on private activities in the regarding the reintroduced listed Federal government and is being affected area. The designation of a NEP species within the NEP are significantly undertaken at the request of a State in this rule will significantly reduce the reduced. Section 10(j) of the Act can agency (TWRA). We have cooperated regulatory requirements regarding the provide regulatory relief with regard to with the TWRA in the preparation of reintroduction of these species, will not the taking of reintroduced species this rule. Therefore, this rule does not create inconsistencies with other within an NEP area. For example, this have significant Federalism effects or agencies’ actions, and will not conflict rule allows for the taking of these implications to warrant the preparation with existing or proposed human reintroduced mollusks and fishes when of a Federalism Assessment pursuant to activity, or Federal, State, or public use such take is incidental to an otherwise the provisions of Executive Order of the land or aquatic resources. legal activity, such as recreation (e.g., 13132. fishing, boating, wading, trapping, Small Business Regulatory Enforcement swimming), forestry, agriculture, and Civil Justice Reform Fairness Act other activities that are in accordance In accordance with Executive Order This rule is not a major rule under 5 with Federal, State, and local laws and 12988, the Office of the Solicitor has U.S.C. 804(2), the Small Business regulations. Because of the substantial determined that this rule does not Regulatory Enforcement Fairness Act. regulatory relief provided by NEP unduly burden the judicial system and This rule will not have an annual effect designations, we do not believe the that it meets the requirements of on the economy of $100 million or reintroduction of these species will sections (3)(a) and (3)(b)(2) of the Order. more. It will not cause a major increase conflict with existing or proposed in costs or prices for consumers, human activities or hinder public use of Paperwork Reduction Act individual industries, Federal, State, or the French Broad and Holston River Office of Management and Budget local government agencies, or systems. (OMB) regulations at 5 CFR part 1320, geographical regions. This rule does not A takings implication assessment is which implement provisions of the have significant adverse effects on not required because this rule (1) Will Paperwork Reduction Act (44 U.S.C. competition, employment, investment, not effectively compel a property owner 3501 et seq.) require that Federal

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agencies obtain approval from OMB 13211 requires agencies to prepare I 2. Amend § 17.11(h), the List of before collecting information from the Statements of Energy Effects when Endangered and Threatened Wildlife, as public. An agency may not conduct or undertaking certain actions. This rule is follows: sponsor, and a person is not required to not expected to significantly affect I a. Under the heading ‘‘FISHES,’’ by respond to, a collection of information energy supplies, distribution, and use. revising the entries for ‘‘Chub, slender’’; unless it displays a currently valid Therefore, this action is not a significant ‘‘Chub, spotfin’’; ‘‘Darter, duskytail’’; control number. This rule does not energy action and no Statement of ‘‘Madtom, pygmy’’; ‘‘Madtom, smoky’’; include any new collections of Energy Effects is required. and ‘‘Madtom, yellowfin’’ to read as set information that require approval by References Cited forth below; OMB under the Paperwork Reduction I b. Under the heading ‘‘CLAMS,’’ by Act. A complete list of all references cited revising the entries for ‘‘Bean, National Environmental Policy Act herein is available, upon request, from Cumberland (pearlymussel)’’; ‘‘Blossom, (NEPA) the Cookeville, TN Field Office (see tubercled (pearlymussel)’’; ‘‘Blossom, ADDRESSES section). turgid (pearlymussel)’’; ‘‘Blossom, We have determined that the issuance yellow (pearlymussel)’’; ‘‘Catspaw of this rule is categorically excluded Author (purple cat’s paw pearlymussel)’’; from National Environmental Policy Act The principal author of this rule is requirements (516 DM 6, Appendix 1.4 ‘‘Clubshell’’; ‘‘Combshell, Timothy Merritt, Cookeville Field Office B(6)). Cumberlandian’’; ‘‘Fanshell’’; (see ADDRESSES section). ‘‘Lampmussel, Alabama’’; ‘‘Mapleleaf, Government-to-Government List of Subjects in 50 CFR Part 17 winged (mussel)’’; ‘‘Monkeyface, Relationship With Tribes Appalachian (pearlymussel)’’; In accordance with the President’s Endangered and threatened species, ‘‘Monkeyface, Cumberland memorandum of April 29, 1994, Exports, Imports, Reporting and (pearlymussel)’’; ‘‘Mussel, oyster’’; ‘‘Government-to-Government Relations recordkeeping requirements, and ‘‘Pearlymussel, birdwing’’; with Native American Tribal Transportation. ‘‘Pearlymussel, cracking’’; ‘‘Pearlymussel, dromedary’’; ‘‘Pigtoe, Governments’’ (59 FR 229511), Final Regulation Promulgation Executive Order 13175, and the fine-rayed’’; ‘‘Pigtoe, rough’’; ‘‘Pigtoe, Department of the Interior Manual I Accordingly, we amend part 17, shiny’’; ‘‘Pimpleback, orangefoot Chapter 512 DM 2, we have evaluated subchapter B of chapter I, title 50 of the (pearlymussel)’’; ‘‘Pink, ring (mussel)’’; possible effects on federally recognized Code of Federal Regulations as set forth and ‘‘Wartyback, white (pearlymussel)’’ Indian tribes and have determined that below: to read as set forth below; and there are no effects. I c. Under the heading ‘‘SNAILS,’’ by PART 17—[AMENDED] revising the entry for ‘‘Riversnail, Energy Supply, Distribution or Use (E.O. Anthony’s’’ to read as set forth below. 13211) I 1. The authority citation for part 17 On May 18, 2001, the President issued continues to read as follows: § 17.11 Endangered and threatened wildlife. Executive Order 13211 on regulations Authority: 16 U.S.C. 1361–1407; 16 U.S.C. that significantly affect energy supply, 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– * * * * * distribution, and use. Executive Order 625, 100 Stat. 3500, unless otherwise noted. (h) * * *

Species Vertebrate popu- Historic lation where endan- Status When Critical Special Common name Scientific name range gered or threatened listed habitat rules

******* FISHES

******* Chub, slender ...... Erimystax cahni ...... U.S.A. (TN, VA) ...... Entire, except where T 28 17.95(e) 17.44(c) listed as an ex- perimental popu- lation. Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.84(sr) fied portions of the French Broad and Holston Riv- ers; see 17.84(s)(1)(i)).

******* Chub, spotfin Erimonax monachus U.S.A. (AL, GA, NC, Entire, except where T 28 17.95(e) 17.44(c) (=turquoise shiner). TN, VA). listed as an ex- perimental popu- lation. Do ...... do ...... do ...... U.S.A. (TN—speci- XN 732 NA 17.84(m) fied portions of the Tellico River; see 17.84(m)(1)(i)).

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Species Vertebrate popu- Historic lation where endan- Status When Critical Special Common name Scientific name range gered or threatened listed habitat rules

Do ...... do ...... do ...... U.S.A. (AL, TN— XN 747 NA 17.84(m) specified portions of Shoal Creek; see 17.84(m)(1)(ii)). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.84(m) fied portions of the French Broad and Holston Riv- ers; see 17.84(m)(1)(iii)).

******* Darter, duskytail ...... Etheostoma U.S.A. (TN, VA) ...... Entire, except where E 502 NA NA percnurum. listed as an ex- perimental popu- lation. Do ...... do ...... do ...... U.S.A. (TN—speci- XN 732 NA 17.84(q) fied portions of the Tellico River; see 17.84(p)(1)(i)). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.84(q) fied portions of the French Broad and Holston Riv- ers; see 17.84(q)(1)(ii)).

******* Madtom, pygmy ...... Noturus stanauli ..... U.S.A. (TN) ...... Entire, except where E 502 NA NA listed as an ex- perimental popu- lation. Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.84(t) fied portions of the French Broad and Holston Riv- ers; see 17.84(t)(1)(i)).

******* Madtom, smoky ...... Noturus baileyi ...... U.S.A. (TN) ...... Entire, except where E 163 17.95(e) NA listed as an ex- perimental popu- lation. Do ...... do ...... do ...... U.S.A. (TN—speci- XN 732 NA 17.84(r) fied portions of the Tellico River; see 17.84(r)(1)(i)).

******* Madtom, yellowfin .... Noturus flavipinnis .. U.S.A. (TN, VA) ...... Entire, except where T 28 17.95(e) 17.44(c) listed as an ex- perimental popu- lation. Do ...... do ...... do ...... U.S.A. (TN, VA— XN 317 NA 17.84(e) specified portions of the Holston River and water- shed; see 17.84(e)(1)(i)). Do ...... do ...... do ...... U.S.A. (TN—speci- XN 732 NA 17.84(e) fied portions of the Tellico River; see 17.84(e)(1)(ii)). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.84(e) fied portions of the French Broad and Holston Riv- ers; see 17.84(e)(1)(iii)).

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Species Vertebrate popu- Historic lation where endan- Status When Critical Special Common name Scientific name range gered or threatened listed habitat rules

******* CLAMS

******* Bean, Cumberland Villosa trabalis ...... U.S.A. (AL, KY, TN, NA ...... E 15 NA NA (pearlymussel). VA). Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)).

******* Blossom, tubercled Epioblasma torulosa U.S.A. (AL, IL, IN, NA ...... E 15 NA NA (pearlymussel). torulosa. KY, TN, WV). Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)). Blossom, turgid Epioblasma U.S.A. (AL, TN) ...... NA ...... E 15 NA NA (pearlymussel). turgidula. Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)). Blossom, yellow Epioblasma ...... do ...... NA ...... E 15 NA NA (pearlymussel). florentina florentina. Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)). Catspaw, (=purple Epioblasma ...... U.S.A. (AL, IL, IN, NA ...... E 394 NA NA cat’s paw KY, OH, TN). pearlymussel). Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)). Clubshell ...... Pleurobema clava ... U.S.A. (AL, IL, IN, NA ...... E 488 NA NA KY, MI, OH, PA, TN, WV). Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)).

******* Combshell, Epioblasma U.S.A. (AL, KY, MS, NA ...... E 602 17.95(f) NA Cumberlandian. brevidens. TN, VA). Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)).

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Species Vertebrate popu- Historic lation where endan- Status When Critical Special Common name Scientific name range gered or threatened listed habitat rules

Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1).

******* Fanshell ...... Cyprogenia stegaria U.S.A. (AL, IL, IN, NA ...... E 391 NA NA (=irrorata). KY, OH, PA, TN, VA, WV). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)). Lampmussel, Ala- Lampsilis virescens U.S.A. (AL, TN) ...... NA ...... E 15 NA NA bama. Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)).

******* Mapleleaf, winged Quadrula fragosa .... U.S.A. (AL, IA, IL, NA ...... E 426 NA NA (mussel). IN, KY, MN, MO, NE, OH, OK, TN, WI). Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)).

******* Monkeyface, Appa- Quadrula sparsa ..... U.S.A. (TN, VA) ...... NA ...... E 15 NA NA lachian (pearlymussel). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)). Monkeyface, Cum- Quadrula intermedia U.S.A. (AL, TN, VA) NA ...... E 15 NA NA berland (pearlymussel). Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)).

******* Mussel, oyster ...... Epioblasma U.S.A. (AL, GA, KY, NA ...... E 602 17.95(f) NA capsaeformis. MS, NC, TN, VA). Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)).

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Species Vertebrate popu- Historic lation where endan- Status When Critical Special Common name Scientific name range gered or threatened listed habitat rules

Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)).

******* Pearlymussel, Lemiox rimosus ...... U.S.A. (AL, TN, VA) NA ...... E 15 NA NA birdwing. Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)). Pearlymussel, crack- Hemistena lata ...... U.S.A. (AL, IL, IN, NA ...... E 366 NA NA ing. KY, OH, TN, VA). Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)).

******* Pearlymussel, drom- Dromus dromas ...... U.S.A. (AL, KY, TN, NA ...... E 15 NA NA edary. VA). Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)).

******* Pigtoe, fine-rayed .... Fusconaia cuneolus U.S.A. (AL, TN, VA) NA ...... E 15 NA NA Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)).

******* Pigtoe, rough ...... Pleurobema plenum U.S.A. (AL, IN, KY, NA ...... E 15 NA NA PA, TN, VA).

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Species Vertebrate popu- Historic lation where endan- Status When Critical Special Common name Scientific name range gered or threatened listed habitat rules

Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)). Pigtoe, shiny ...... Fusconaia cor ...... U.S.A. (AL, TN, VA) NA ...... E 15 NA NA Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)).

******* Pimpleback, Plethobasus U.S.A. (AL, IA, IL, NA ...... E 15 NA NA orangefoot cooperianus. IN, KY, OH, PA, (pearlymussel). TN). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)).

******* Pink, ring (mussel) ... Obovaria retusa ...... U.S.A. (AL, IL, IN, NA ...... E 369 NA NA KY, OH, PA, TN, WV). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)).

******* Wartyback, white Plethobasus U.S.A. (AL, IL, IN, NA ...... E 15 NA NA (pearlymussel). cicatricosus. KY, TN). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)).

******* SNAILS

******* Riversnail, Anthony’s Athearnia anthonyi U.S.A. (AL, GA, TN) NA ...... E 538 NA NA Do ...... do ...... do ...... U.S.A. (AL—speci- XN 709 NA 17.85(a) fied portions of the Tennessee River; see 17.85(a)(1)). Do ...... do ...... do ...... U.S.A. (TN—speci- XN ...... NA 17.85(b) fied portions of the French Broad and Holston Riv- ers; see 17.85(b)(1)).

*******

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I 3. Amend § 17.84 as follows: confluence with the Holston River; then efforts after 5 and 10 years to determine I a. Revise paragraphs (e), (m), and (o) up the Holston River, Knox, Grainger, whether to continue or terminate the to read as set forth below; and and Jefferson Counties, Tennessee, to reintroduction efforts. I b. Add new paragraphs (q), (r), (s), and the base of Cherokee Dam (RM 52.3 (5) Note: Map of the NEP area for the (t) to read as set forth below. (83.7 km)); and the lower 5 RM (8 km) yellowfin madtom in the Tellico River, § 17.84 Special rules—vertebrates. of all tributaries that enter these river Tennessee, appears immediately reaches. This species is not known to following paragraph (m)(5) of this * * * * * exist in any of the tributaries to the free- section. (e) Yellowfin madtom (Noturus flowing reaches of the French Broad (6) Note: Map of the NEP area for the flavipinnis). (1) Where is the yellowfin River below Douglas Dam, Knox and yellowfin madtom in the French Broad madtom designated as a nonessential Sevier Counties, Tennessee, or of the River and Holston River, Tennessee, experimental population (NEP)? We Holston River below the Cherokee Dam, appears immediately following have designated three populations of Knox, Grainger, and Jefferson Counties, paragraph (m)(7) of this section. this species as NEPs: the North Fork Tennessee. Based on its habitat * * * * * Holston River Watershed NEP, the requirements, we do not expect this Tellico River NEP, and the French (m) Spotfin chub (=turquoise shiner) species to become established outside (Erimonax monachus). (1) Where is the Broad River and Holston River NEP. this NEP area. However, if individuals (i) The North Fork Holston River spotfin chub designated as a of this population move upstream or Watershed NEP area is within the nonessential experimental population downstream or into tributaries outside species’ historic range and is defined as (NEP)? We have designated three the designated NEP area, we would populations of this species as NEPs: the follows: The North Fork Holston River presume that they came from the watershed, Washington, Smyth, and Tellico River NEP, the Shoal Creek NEP, reintroduced population. We would and the French Broad River and Holston Scott Counties, Virginia; South Fork then amend this regulation to enlarge Holston River watershed upstream to Ft. River NEP. This species is not currently the boundaries of the NEP area to known to exist in the Tellico River or Patrick Henry Dam, Sullivan County, include the entire range of the expanded Tennessee; and the Holston River from its tributaries, the Shoal Creek or its population. tributaries, or any of the tributaries to the confluence of the North and South (iv) We do not intend to change the the free-flowing reaches of the French Forks downstream to the John Sevier NEP designations to ‘‘essential Broad River below Douglas Dam, Knox Detention Lake Dam, Hawkins County, experimental,’’ ‘‘threatened,’’ or and Sevier Counties, Tennessee, or of Tennessee. This site is totally isolated ‘‘endangered’’ within the NEP areas. the Holston River below the Cherokee from existing populations of this species Additionally, we will not designate Dam, Knox, Grainger, and Jefferson by large Tennessee River tributaries and critical habitat for these NEPs, as Counties, Tennessee. Based on its reservoirs. As the species is not known provided by 16 U.S.C. 1539(j)(2)(C)(ii). to inhabit reservoirs and because (2) What activities are not allowed in habitat requirements, we do not expect individuals of the species are not likely the NEP areas? (i) Except as expressly this species to become established to move 100 river miles through these allowed in paragraph (e)(3) of this outside the NEP areas. However, if large reservoirs, the possibility that this section, all the prohibitions of § 17.31(a) individuals move upstream or population could come in contact with and (b) apply to the yellowfin madtom. downstream or into tributaries outside extant wild populations is unlikely. (ii) Any manner of take not described any of the designated NEP areas, we (ii) The Tellico River NEP area is under paragraph (e)(3) of this section is would presume that those individuals within the species’ historic range and is prohibited in the NEP area. We may came from the closest reintroduced defined as follows: The Tellico River, refer unauthorized take of this species to population. We would then amend this between the backwaters of the Tellico the appropriate authorities for regulation and enlarge the boundaries of Reservoir (approximately Tellico River prosecution. the NEP area to include the entire range mile 19 (30.4 kilometers) and Tellico (iii) You may not possess, sell, of the expanded population. River mile 33 (52.8 kilometers), near the deliver, carry, transport, ship, import, or (i) The Tellico River NEP area is Tellico Ranger Station, Monroe County, export by any means whatsoever any of within the species’ probable historic Tennessee. This species is not currently the identified fishes, or parts thereof, range and is defined as follows: The known to exist in the Tellico River or that are taken or possessed in violation Tellico River, between the backwaters of its tributaries. Based on its habitat of paragraph (e)(2) of this section or in the Tellico Reservoir (approximately requirements, we do not expect this violation of the applicable State fish and Tellico River mile 19 (30.4 kilometers species to become established outside wildlife laws or regulations or the Act. (km)) and Tellico River mile 33 (52.8 this NEP area. However, if individuals (iv) You may not attempt to commit, km), near the Tellico Ranger Station, of this population move upstream or solicit another to commit, or cause to be Monroe County, Tennessee. downstream or into tributaries outside committed any offense defined in (ii) The Shoal Creek NEP area is the designated NEP area, we would paragraph (e)(2) of this section. within the species’ historic range and is presume that they came from the (3) What take is allowed in the NEP defined as follows: Shoal Creek (from reintroduced population. We would area? Take of this species that is Shoal Creek mile 41.7 (66.7 km)) at the then amend this regulation to enlarge accidental and incidental to an mouth of Long Branch, Lawrence the boundaries of the NEP area to otherwise legal activity, such as County, TN, downstream to the include the entire range of the expanded recreation (e.g., fishing, boating, wading, backwaters of Wilson Reservoir (Shoal population. trapping, or swimming), forestry, Creek mile 14 (22 km)) at Goose Shoals, (iii) The French Broad River and agriculture, and other activities that are Lauderdale County, AL, including the Holston River NEP area is within the in accordance with Federal, State, and lower 5 miles (8 km) of all tributaries species’ historic range and is defined as local laws and regulations, is allowed. that enter this reach. follows: the French Broad River, Knox (4) How will the effectiveness of these (iii) The French Broad River and and Sevier Counties, Tennessee, from reintroductions be monitored? We will Holston River NEP area is within the the base of Douglas Dam (river mile prepare periodic progress reports and species’ historic range and is defined as (RM) 32.3 (51.7 km)) downstream to the fully evaluate these reintroduction follows: the French Broad River, Knox

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and Sevier Counties, Tennessee, from of paragraph (m)(2) of this section or in experts. We will produce annual reports the base of Douglas Dam (river mile violation of the applicable State fish and detailing the stocking rates and (RM) 32.3 (51.7 km)) downstream to the wildlife laws or regulations or the Act. monitoring activities that took place confluence with the Holston River; then (iv) You may not attempt to commit, during the previous year. We will also up the Holston River, Knox, Grainger, solicit another to commit, or cause to be fully evaluate these reintroduction and Jefferson Counties, Tennessee, to committed any offense defined in efforts after 5 and 10 years to determine the base of Cherokee Dam (RM 52.3 paragraph (m)(2) of this section. whether to continue or terminate the (83.7 km)); and the lower 5 RM (8 km) (3) What take is allowed in the NEP reintroduction efforts. of all tributaries that enter these river area? Take of this species that is reaches. accidental and incidental to an (iii) In the Lower French Broad and (iv) We do not intend to change the otherwise legal activity, such as Lower Holston Rivers NEP area, after the NEP designations to ‘‘essential recreation (e.g., fishing, boating, wading, initial stocking of these species, we will experimental,’’ ‘‘threatened,’’ or trapping, or swimming), forestry, monitor annually their presence or ‘‘endangered’’ within the NEP area. agriculture, and other activities that are absence and document any spawning Additionally, we will not designate in accordance with Federal, State, and behavior or young-of-the-year that might critical habitat for these NEPs, as local laws and regulations, is allowed. be present. This monitoring will be provided by 16 U.S.C. 1539(j)(2)(C)(ii). (4) How will the effectiveness of these conducted primarily by snorkeling or (2) What activities are not allowed in reintroductions be monitored? (i) In the seining and will be accomplished by the NEP area? (i) Except as expressly Tellico River NEP area, we will prepare contracting with the appropriate species allowed in paragraph (m)(3) of this periodic progress reports and fully experts. Annual reports will be section, all the provisions of § 17.31(a) evaluate these reintroduction efforts produced detailing the stocking rates and (b) apply to the spotfin chub. after 5 and 10 years to determine and monitoring activities that took place (ii) Any manner of take not described whether to continue or terminate the during the previous year. We will also under paragraph (m)(3) of this section is reintroduction efforts. fully evaluate these reintroduction (ii) In the Shoal Creek NEP area, after prohibited in the NEP area. We may efforts after 5 and 10 years to determine the initial stocking of fish, we will refer unauthorized take of this species to whether to continue or terminate the the appropriate authorities for monitor annually their presence or reintroduction efforts. prosecution. absence and document any spawning (iii) You may not possess, sell, behavior or young-of-the-year fish that (5) Note: Map of the Tellico River NEP deliver, carry, transport, ship, import, or might be present. This monitoring will area for spotfin chub, dusky darter, export by any means whatsoever any of be conducted primarily by snorkeling or smoky madtom, and yellowfin madtom the identified fishes, or parts thereof, seining and will be accomplished by in Tennessee follows: that are taken or possessed in violation contracting with the appropriate species BILLING CODE 4310–55–P

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(6) Note: Map of the Shoal Creek NEP area for spotfin chub and boulder darter in Tennessee and Alabama follows:

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(7) Note: Map of the French Broad darter, pygmy madtom, and yellowtail River and Holston River NEP area for madtom in Tennessee follows: spotfin chub, slender chub, duskytail

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BILLING CODE 4310–55–C

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* * * * * agriculture, and other activities that are and Sevier Counties, Tennessee, from (o) Boulder darter (Etheostoma in accordance with Federal, State, and the base of Douglas Dam (river mile wapiti). local laws and regulations, is allowed. (RM) 32.3 (51.7 km)) downstream to the (1) Where is the boulder darter (4) How will the effectiveness of these confluence with the Holston River; then designated as a nonessential reintroductions be monitored? After the up the Holston River, Knox, Grainger, experimental population (NEP)? (i) The initial stocking of fish, we will monitor and Jefferson Counties, Tennessee, to NEP area for the boulder darter is within annually their presence or absence and the base of Cherokee Dam (RM 52.3 the species’ historic range and is document any spawning behavior or (83.7 km)); and the lower 5 RM (8 km) defined as follows: Shoal Creek (from young-of-the-year fish that might be of all tributaries that enter these river Shoal Creek mile 41.7 (66.7 km)) at the present. This monitoring will be reaches. mouth of Long Branch, Lawrence conducted primarily by snorkeling or (iii) We do not intend to change the County, TN, downstream to the seining and will be accomplished by NEP designations to ‘‘essential backwaters of Wilson Reservoir (Shoal contracting with the appropriate species experimental,’’ ‘‘threatened,’’ or Creek mile 14 (22 km)) at Goose Shoals, experts. We will produce annual reports ‘‘endangered’’ within the NEP area. Lauderdale County, AL, including the detailing the stocking rates and Additionally, we will not designate lower 5 miles (8 km) of all tributaries monitoring activities that took place critical habitat for these NEPs, as that enter this reach. during the previous year. We will also provided by 16 U.S.C. 1539(j)(2)(C)(ii). (ii) The boulder darter is not currently fully evaluate these reintroduction (2) What activities are not allowed in known to exist in Shoal Creek or its efforts after 5 and 10 years to determine the NEP area? (i) Except as expressly tributaries. Based on the habitat whether to continue or terminate the allowed in paragraph (q)(3) of this requirements of this fish, we do not reintroduction efforts. section, all the prohibitions of § 17.31(a) expect it to become established outside (5) Note: Map of the NEP area for the and (b) apply to the duskytail darter. the NEP area. However, if any boulder darter in the Shoal Creek, (ii) Any manner of take not described individuals of the species move Tennessee and Alabama, appears under paragraph (q)(3) of this section is upstream or downstream or into immediately following paragraph (m)(6) prohibited in the NEP area. We may tributaries outside the designated NEP of this section. refer unauthorized take of this species to area, we would presume that they came * * * * * the appropriate authorities for from the reintroduced population. We (q) Duskytail darter (Etheostoma prosecution. would then amend this rule through our percnurum). (1) Where is the duskytail (iii) You may not possess, sell, normal rulemaking process in order to darter designated as a nonessential deliver, carry, transport, ship, import, or enlarge the boundaries of the NEP area experimental population (NEP)? We export by any means whatsoever any of to include the entire range of the have designated two populations of this the identified fishes, or parts thereof, expanded population. that are taken or possessed in violation (iii) We do not intend to change the species as NEPs: The Tellico River NEP of paragraph (q)(2) of this section or in NEP designations to ‘‘essential and the French Broad River and Holston violation of the applicable State fish and experimental,’’ ‘‘threatened,’’ or River NEP. This species is not currently wildlife laws or regulations or the Act. ‘‘endangered’’ within the NEP area. known to exist in the Tellico River or (iv) You may not attempt to commit, Additionally, we will not designate its tributaries or in any of the tributaries solicit another to commit, or cause to be critical habitat for these NEPs, as to the free-flowing reaches of the French committed any offense defined in provided by 16 U.S.C. 1539(j)(2)(C)(ii). Broad River below Douglas Dam, Knox (2) What activities are not allowed in and Sevier Counties, Tennessee, or of paragraph (q)(2) of this section. the NEP area? (i) Except as expressly the Holston River below the Cherokee (3) What take is allowed in the NEP allowed in paragraph (o)(3) of this Dam, Knox, Grainger, and Jefferson area? Take of this species that is section, all the provisions of § 17.31(a) Counties, Tennessee. Based on its accidental and incidental to an and (b) apply to the boulder darter. habitat requirements, we do not expect otherwise legal activity, such as (ii) Any manner of take not described this species to become established recreation (e.g., fishing, boating, wading, under paragraph (o)(3) of this section is outside these NEP areas. However, if trapping, or swimming), forestry, prohibited in the NEP area. We may individuals move upstream or agriculture, and other activities that are refer unauthorized take of these species downstream or into tributaries outside in accordance with Federal, State, and to the appropriate authorities for either of the designated NEP areas, we local laws and regulations, is allowed. prosecution. would presume that these individuals (4) How will the effectiveness of these (iii) You may not possess, sell, came from the reintroduced population. reintroductions be monitored? We will deliver, carry, transport, ship, import, or We would then amend this rule and prepare periodic progress reports and export by any means whatsoever any of enlarge the boundaries of the NEP area fully evaluate these reintroduction the identified fishes, or parts thereof, to include the entire range of the efforts after 5 and 10 years to determine that are taken or possessed in violation expanded population. whether to continue or terminate the of paragraph (o)(2) of this section or in (i) The Tellico River NEP area is reintroduction efforts. violation of the applicable State fish and within the species’ historic range and is (5) Note: Map of the NEP area for the wildlife laws or regulations or the Act. defined as follows: The Tellico River, duskytail darter in the Tellico River, (iv) You may not attempt to commit, between the backwaters of the Tellico Tennessee, appears immediately solicit another to commit, or cause to be Reservoir (approximately Tellico River following paragraph (m)(5) of this committed any offense defined in mile 19 (30.4 kilometers) and Tellico section. paragraph (o)(2) of this section. River mile 33 (52.8 kilometers), near the (6) Note: Map of the NEP area for the (3) What take is allowed in the NEP Tellico Ranger Station, Monroe County, duskytail darter in the French Broad area? Take of this species that is Tennessee. River and Holston River, Tennessee, accidental and incidental to an (ii) The French Broad River and appears immediately following otherwise legal activity, such as Holston River NEP area is within the paragraph (m)(7) of this section. recreation (e.g., fishing, boating, wading, species’ historic range and is defined as (r) Smoky madtom (Noturus baileyi). trapping, or swimming), forestry, follows: the French Broad River, Knox (1) Where is the smoky madtom

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designated as a nonessential fully evaluate these reintroduction of paragraph (s)(2) of this section or in experimental population (NEP)? efforts after 5 and 10 years to determine violation of the applicable State fish and (i) The NEP area for the smoky whether to continue or terminate the wildlife laws or regulations or the Act. madtom is within the species’ probable reintroduction efforts. (iv) You may not attempt to commit, historic range and is defined as follows: (5) Note: Map of the NEP area for the solicit another to commit, or cause to be The Tellico River, between the smoky madtom in the Tellico River, committed any offense defined in backwaters of the Tellico Reservoir Tennessee, appears immediately paragraph (s)(2) of this section. (approximately Tellico River mile 19 following paragraph (m)(6) of this (3) What take is allowed in the NEP (30.4 kilometers) and Tellico River mile section. area? Take of this species that is 33 (52.8 kilometers), near the Tellico (s) Slender chub (Erimystax cahni). accidental and incidental to an Ranger Station, Monroe County, (1) Where is the slender chub designated otherwise legal activity, such as Tennessee. as a nonessential experimental recreation (e.g., fishing, boating, wading, (ii) The smoky madtom is not population (NEP)? trapping, or swimming), forestry, currently known to exist in the Tellico (i) The NEP area for the slender chub agriculture, and other activities that are River or its tributaries. Based on the is within the species’ historic range and in accordance with Federal, State, and habitat requirements of this fish, we do is defined as follows: the French Broad local laws and regulations, is allowed. not expect it to become established River, Knox and Sevier Counties, (4) How will the effectiveness of these outside the NEP area. However, if any Tennessee, from the base of Douglas reintroductions be monitored? We will individuals of the species move Dam (river mile (RM) 32.3 (51.7 km)) prepare periodic progress reports and upstream or downstream or into downstream to the confluence with the fully evaluate these reintroduction tributaries outside the designated NEP Holston River; then up the Holston efforts after 5 and 10 years to determine area, we would presume that they came River, Knox, Grainger, and Jefferson whether to continue or terminate the from the reintroduced population. We Counties, Tennessee, to the base of reintroduction efforts. would then amend paragraph (r)(1)(i) of Cherokee Dam (RM 52.3 (83.7 km)); and (5) Note: Map of the NEP area for the this section and enlarge the boundaries the lower 5 RM (8 km) of all tributaries slender chub in the French Broad River of the NEP area to include the entire that enter these river reaches. and Holston River, Tennessee, appears range of the expanded population. (ii) The slender chub is not known to immediately following paragraph (m)(7) (iii) We do not intend to change the exist in any of the tributaries to the free- of this section. NEP designations to ‘‘essential flowing reaches of the French Broad (t) Pygmy madtom (Noturus stanauli). experimental,’’ ‘‘threatened,’’ or River below Douglas Dam, Knox and (1) Where is the pygmy madtom ‘‘endangered’’ within the NEP area. Sevier Counties, Tennessee, or of the designated as a nonessential Additionally, we will not designate Holston River below the Cherokee Dam, experimental population (NEP)? critical habitat for this NEP, as provided Knox, Grainger, and Jefferson Counties, (i) The NEP area for the pygmy by 16 U.S.C. 1539(j)(2)(C)(ii). Tennessee. Based on its habitat madtom is within the species’ historic (2) What activities are not allowed in requirements, we do not expect this range and is defined as follows: the the NEP area? (i) Except as expressly species to become established outside French Broad River, Knox and Sevier allowed in paragraph (r)(3) of this this NEP area. However, if individuals Counties, Tennessee, from the base of section, all the prohibitions of § 17.31(a) of this population move upstream or Douglas Dam (river mile (RM) 32.3 (51.7 and (b) apply to the smoky madtom. downstream or into tributaries outside km)) downstream to the confluence with (ii) Any manner of take not described the designated NEP area, we would the Holston River; then up the Holston under paragraph (r)(3) of this section is presume that they came from the River, Knox, Grainger, and Jefferson prohibited in the NEP area. We may reintroduced population. We would Counties, Tennessee, to the base of refer unauthorized take of this species to then amend this regulation to enlarge Cherokee Dam (RM 52.3 (83.7 km)); and the appropriate authorities for the boundaries of the NEP area to the lower 5 RM (8 km) of all tributaries prosecution. include the entire range of the expanded that enter these river reaches. (iii) You may not possess, sell, population. (ii) The pygmy madtom is not known deliver, carry, transport, ship, import, or (iii) We do not intend to change the to exist in any of the tributaries to the export by any means whatsoever any of NEP designations to ‘‘essential free-flowing reaches of the French Broad the identified fishes, or parts thereof, experimental,’’ ‘‘threatened,’’ or River below Douglas Dam, Knox and that are taken or possessed in violation ‘‘endangered’’ within the NEP area. Sevier Counties, Tennessee, or of the of paragraph (r)(2) of this section or in Additionally, we will not designate Holston River below the Cherokee Dam, violation of the applicable State fish and critical habitat for this NEP, as provided Knox, Grainger, and Jefferson Counties, wildlife laws or regulations or the Act. by 16 U.S.C. 1539(j)(2)(C)(ii). Tennessee. Based on its habitat (iv) You may not attempt to commit, (2) What activities are not allowed in requirements, we do not expect this solicit another to commit, or cause to be the NEP area? (i) Except as expressly species to become established outside committed any offense defined in allowed in paragraph (s)(3) of this this NEP area. However, if individuals paragraph (r)(2) of this section. section, all the prohibitions of § 17.31(a) of this population move upstream or (3) What take is allowed in the NEP and (b) apply to the slender chub. downstream or into tributaries outside area? Take of this species that is (ii) Any manner of take not described the designated NEP area, we would accidental and incidental to an under paragraph (s)(3) of this section is presume that they came from the otherwise legal activity, such as prohibited in the NEP area. We may reintroduced population. We would recreation (e.g., fishing, boating, wading, refer unauthorized take of this species to then amend this regulation to enlarge trapping, or swimming), forestry, the appropriate authorities for the boundaries of the NEP area to agriculture, and other activities that are prosecution. include the entire range of the expanded in accordance with Federal, State, and (iii) You may not possess, sell, population. local laws and regulations, is allowed. deliver, carry, transport, ship, import, or (iii) We do not intend to change the (4) How will the effectiveness of these export by any means whatsoever any of NEP designations to ‘‘essential reintroductions be monitored? We will the identified fishes, or parts thereof, experimental,’’ ‘‘threatened,’’ or prepare periodic progress reports and that are taken or possessed in violation ‘‘endangered’’ within the NEP area.

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Additionally, we will not designate Common name Scientific name Holston River; then up the Holston critical habitat for this NEP, as provided River, Knox, Grainger, and Jefferson by 16 U.S.C. 1539(j)(2)(C)(ii). catspaw (purple Epioblasma Counties, Tennessee, to the base of (2) What activities are not allowed in cat’s paw obliquata Cherokee Dam (RM 52.3 (83.7 km)); and the NEP area? (i) Except as expressly pearlymussel). obliquata the lower 5 RM (8 km) of all tributaries clubshell ...... Pleurobema clava that enter these river reaches. None of allowed in paragraph (t)(3) of this Cumberlandian Epioblasma section, all the prohibitions of § 17.31(a) combshell. brevidens the species identified in paragraph (b) and (b) apply to the pygmy madtom. Alabama Lampsilis are known to exist in any of the (ii) Any manner of take not described lampmussel. virescens tributaries to the free-flowing reaches of under paragraph (t)(3) of this section is winged mapleleaf Quadrula fragosa the French Broad River below Douglas prohibited in the NEP area. We may (mussel). Dam, Knox and Sevier Counties, refer unauthorized take of this species to Cumberland Quadrula inter- Tennessee, or of the Holston River the appropriate authorities for monkeyface media below the Cherokee Dam, Knox, prosecution. (pearlymussel). Grainger, and Jefferson Counties, oyster mussel ...... Epioblasma (iii) You may not possess, sell, Tennessee. Based on their habitat capsaeformis requirements, we do not expect these deliver, carry, transport, ship, import, or birdwing Lemiox rimosus export by any means whatsoever any of pearlymussel. species to become established outside the identified fishes, or parts thereof, cracking Hemistena lata this NEP area. However, if any that are taken or possessed in violation pearlymussel. individuals are found upstream or of paragraph (t)(2) of this section or in dromedary Dromus dromas downstream or into tributaries outside violation of the applicable State fish and pearlymussel. the designated NEP area, we would wildlife laws or regulations or the Act. fine-rayed pigtoe ... Fusconaia presume that they came from the cuneolus (iv) You may not attempt to commit, reintroduced populations. We would shiny pigtoe ...... Fusconaia cor then amend paragraph (b)(1)(i) of this solicit another to commit, or cause to be Anthony’s riversnail Athearnia anthonyi committed any offense defined in section to enlarge the boundaries of the NEP area to include the entire range of paragraph (t)(2) of this section. * * * * * (3) What take is allowed in the NEP the expanded population. (b) Sixteen mollusks in the French (ii) Another NEP area for 10 of these area? Take of this species that is Broad and Holston Rivers. The species mollusks (Cumberland bean, accidental and incidental to an in the following table comprise Cumberlandian combshell, Cumberland otherwise legal activity, such as nonessential experimental populations monkeyface, oyster mussel, birdwing recreation (e.g., fishing, boating, wading, (NEP): pearlymussel, cracking pearlymussel, trapping, or swimming), forestry, dromedary pearlymussel, fine-rayed agriculture, and other activities that are Common name Scientific name pigtoe, shiny pigtoe, and Anthony’s in accordance with Federal, State, and riversnail) is provided in paragraph (a) local laws and regulations, is allowed. Cumberland bean Villosa trabalis (pearlymussel). of this section. (4) How will the effectiveness of these Cumberlandian Epioblasma brevidens (iii) We do not intend to change the reintroductions be monitored? We will combshell. NEP designations to ‘‘essential prepare periodic progress reports and fanshell ...... Cyprogenia stegaria experimental,’’ ‘‘threatened,’’ or fully evaluate these reintroduction Appalachian Quadrula sparsa ‘‘endangered’’ within the NEP area. efforts after 5 and 10 years to determine monkeyface Additionally, we will not designate whether to continue or terminate the (pearlymussel). Cumberland Quadrula intermedia critical habitat for these NEPs, as reintroduction efforts. provided by 16 U.S.C. 1539(j)(2)(C)(ii). (5) Note: Map of the NEP area for the monkeyface (pearlymussel). (2) What activities are not allowed in pygmy madtom in the French Broad oyster mussel ...... Epioblasma the NEP area? (i) Except as expressly River and Holston River, Tennessee, capsaeformis allowed in paragraph (b)(3) of this appears immediately following birdwing pearlymussel Lemiox rimosus section, all the prohibitions of § 17.31(a) paragraph (m)(7) of this section. cracking pearlymussel Hemistena lata and (b) apply to the mollusks identified I 4. Amend § 17.85 by revising dromedary Dromus dromas in paragraph (b) of this section. paragraph (a) introductory text and pearlymussel. (ii) Any manner of take not described adding a new paragraph (b) to read as fine-rayed pigtoe ...... Fusconaia cuneolus under paragraph (b)(3) of this section rough pigtoe ...... Pleurobema plenum will not be allowed in the NEP area. We follows: shiny pigtoe ...... Fusconaia cor may refer the unauthorized take of these § 17.85 Special rules—invertebrates. orange-foot Plethobasus pimpleback cooperianus species to the appropriate authorities for (a) Seventeen mollusks in the (pearlymussel). prosecution. Tennessee River. The species in the ring pink (mussel) ..... Obovaria retusa (iii) You may not possess, sell, following table comprise nonessential white wartyback Plethobasus deliver, carry, transport, ship, import, or experimental populations (NEPs): (pearlymussel). cicatricosus export by any means whatsoever any of Anthony’s riversnail ... Athearnia anthonyi the identified mollusks, or parts thereof, Common name Scientific name that are taken or possessed in violation (1) Where are these mollusks of paragraph (b)(2) of this section or in Cumberland bean Villosa trabalis designated as NEPs? (i) The NEP area violation of the applicable State fish and (pearlymussel). for these mollusks is within the species’ wildlife laws or regulations or the Act. tubercled blossom Epioblasma historical range and is defined as (pearlymussel). torulosa torulosa (iv) You may not attempt to commit, turgid blossom Epioblasma follows: The French Broad River, Knox solicit another to commit, or cause to be (pearlymussel). turgidula and Sevier Counties, Tennessee, from committed any offense defined in yellow blossom Epioblasma the base of Douglas Dam (river mile paragraph (b)(2) of this section. (pearlymussel). florentina (RM) 32.3 (51.7 kilometers (km)) (3) What take is allowed in the NEP florentina downstream to the confluence with the area? Take of these species that is

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accidental and incidental to an (4) How will the effectiveness of these (5) Note: Map of the NEP area in otherwise legal activity, such as reintroductions be monitored? We will Tennessee for the 16 mollusks listed in recreation (e.g., fishing, boating, wading, prepare periodic progress reports and paragraph (b) of this section follows: trapping, or swimming), forestry, fully evaluate these reintroduction BILLING CODE 4310–55–P agriculture, and other activities that are efforts after 5 and 10 years to determine in accordance with Federal, State, and whether to continue or terminate the local laws and regulations, is allowed. reintroduction efforts.

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* * * * * Dated: August 8, 2007. David M. Verhey, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 07–4320 Filed 9–12–07; 8:45 am] BILLING CODE 4310–55–C

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