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assessment according to the standard spotfin chub ( (=Hybopsis) The comments and materials we listed in the second column. monacha), into their historical habitat receive during the comment period will in Shoal Creek, Lauderdale County, be available for public inspection, by Threat Standard , and Lawrence County, appointment, during normal business . Based on the evaluation of hours at our Tennessee Field Office: External corrosion ..... § 192.925 species’ experts, these species currently U.S. Fish and Wildlife Service, 446 Neal Internal corrosion in § 192.927 pipelines that trans- do not exist in this reach or its Street, Cookeville, Tennessee, 38501. If port dry gas. tributaries. These two fish are being you wish to request a public hearing, Stress-corrosion § 192.929 reintroduced under section 10(j) of the you may mail or hand deliver your cracking. Endangered Species Act of 1973, as written request to the above address. amended (Act), and would be classified FOR FURTHER INFORMATION CONTACT: 3. The authority citation for Part 195 as a nonessential experimental Timothy Merritt, U.S. Fish and Wildlife continues to read as follows: population (NEP). Service, 446 Neal Street, Cookeville, Authority: 49 U.S.C. 5103, 60102, 60104, The geographic boundaries of the Tennessee 28801, telephone (931) 528– 60108, 60109, 60118; and 49 CFR 1.53. proposed NEP would extend from the 6481, Ext. 211, facsimile (931) 528– 4. Add § 195.588 to read a follows: mouth of Long Branch, Lawrence 7075, or e-mail at County, Tennessee (Shoal Creek mile [email protected]. § 195.588 What standards apply to direct (CM) 41.7 (66.7 kilometers (km)), SUPPLEMENTARY INFORMATION: assessment? downstream to the backwaters of the If you use direct assessment on an Wilson Reservoir at Goose Shoals, Background onshore pipeline to evaluate the effects Lauderdale County, Alabama 1. Legislative of a threat in the first column or to meet (approximately CM 14 (22 km)), and any requirement of this subpart would include the lower 5 CM (8 km) Congress made significant changes to regarding that threat, you must carry out of all tributaries that enter this reach. the Act in 1982 with the addition of the direct assessment according to the These proposed reintroductions are section 10(j), which provides for the standard listed in the second column. recovery actions and are part of a series designation of specific reintroduced of reintroductions and other recovery populations of listed species as Threat Standard actions that the Service, Federal and ‘‘experimental populations.’’ Previously, State agencies, and other partners are we had authority to reintroduce External corrosion ..... § 192.925 of this populations into unoccupied portions of chapter. conducting throughout the species’ historical ranges. This proposed rule a listed species’ historical range when Stress-corrosion § 192.929 of this doing so would foster the species’ provides a plan for establishing the NEP cracking. chapter. conservation and recovery. However, and provides for limited allowable legal local citizens often opposed these taking of the boulder darter and spotfin Issued in Washington, DC, on October 14, reintroductions because they were chub within the defined NEP area. 2004. concerned about the placement of Stacey L. Gerard, DATES: We will consider comments on restrictions and prohibitions on Federal Associate Administrator for Pipeline Safety. this proposed rule that are received by and private activities. Under section December 20, 2004. Requests for a [FR Doc. 04–23551 Filed 10–20–04; 8:45 am] 10(j) of the Act, the Secretary of the public hearing must be made in writing BILLING CODE 4910–60–P Department of the Interior can designate and received by December 6, 2004. reintroduced populations established ADDRESSES: You may submit comments outside the species’ current range, but DEPARTMENT OF THE INTERIOR and other information, identified by RIN within its historical range, as 1018–AH44, by any of the following ‘‘experimental.’’ Based on the best Fish and Wildlife Service methods: scientific and commercial data • Federal eRulemaking Portal: http:// available, we must determine whether 50 CFR Part 17 www.regulations.gov. Follow the experimental populations are instructions for submitting comments. ‘‘essential,’’ or ‘‘nonessential,’’ to the RIN 1018–AH44 • Mail or Hand Delivery: Field continued existence of the species. Supervisor, U.S. Fish and Wildlife Regulatory restrictions are considerably Endangered and Threatened Wildlife Service, Tennessee Field Office, 446 reduced under a Nonessential and Plants; Establishment of a Neal Street, Cookeville, Tennessee, Experimental Population (NEP) Nonessential Experimental Population 38501. designation. for Two Fishes (Boulder Darter and • Fax: (931) 528–7075. Without the ‘‘nonessential Spotfin Chub) in Shoal Creek, • E-mail: [email protected]. experimental population’’ designation, Tennessee and Alabama Include ‘‘Attn: Shoal Creek NEP’’ in the the Act provides that species listed as AGENCY: Fish and Wildlife Service, subject line of the message. endangered or threatened are afforded Interior. Instructions: All submissions received protection primarily through the ACTION: Proposed rule. must include the agency name and prohibitions of section 9 and the Regulatory Information Number (RIN) requirements of section 7. Section 9 of SUMMARY: We, the U.S. Fish and for this rulemaking. Please include your the Act prohibits the take of an Wildlife Service (Service), in name and return address in the body of endangered species. ‘‘Take’’ is defined cooperation with the States of your message. Please see the Public by the Act as harass, harm, pursue, Tennessee and Alabama and with Comments Solicited section below for hunt, shoot, wound, trap, capture, or Conservation Fisheries, Inc., a nonprofit file format and other information about collect, or attempt to engage in any such organization, propose to reintroduce one electronic filing. In the event that our conduct. Service regulations (50 CFR federally listed endangered fish, the internet connection is not functional, 17.31) generally extend the prohibitions boulder darter (Etheostoma wapiti), and please contact the Service by the of take to threatened wildlife. Section 7 one federally listed threatened fish, the alternative methods mentioned above. of the Act outlines the procedures for

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Federal interagency cooperation to jeopardize the continued existence of a Morgan Counties, Tennessee; the conserve federally listed species and species proposed to be listed. The Holston River and its tributary, North protect designated critical habitat. It results of a conference are advisory in Fork Holston River, Hawkins and mandates all Federal agencies to nature and do not restrict agencies from Sullivan Counties, Tennessee, and Scott determine how to use their existing carrying out, funding, or authorizing and Washington Counties, (U.S. authorities to further the purposes of the activities. Fish and Wildlife Service 1983; P. Act to aid in recovering listed species. Individuals that are used to establish Shute, TVA, pers. comm. 1998). It also states that Federal agencies will, an experimental population may come Since the mid-1980s, Conservation in consultation with the Service, ensure from a donor population, provided their Fisheries, Inc. (CFI), a nonprofit that any action they authorize, fund, or removal will not create adverse impacts organization, with support from us, the carry out is not likely to jeopardize the upon the parent population, and Tennessee Wildlife Resources Agency continued existence of a listed species provided appropriate permits are issued (TWRA), U.S. Forest Service, National or result in the destruction or adverse in accordance with our regulations (50 Park Service, Tennessee Valley modification of designated critical CFR 17.22) prior to their removal. In the Authority (TVA), and Tennessee habitat. Section 7 of the Act does not case of the boulder darter and spotfin Aquarium, has successfully affect activities undertaken on private chub, the donor population is a captive- translocated, propagated, and land unless they are authorized, funded, bred population, which was propagated reintroduced the spotfin chub and three or carried out by a Federal agency. with the intention of re-establishing other federally listed fishes (smoky For purposes of section 9 of the Act, wild populations to achieve recovery madtoms, yellowfin madtoms, and a population designated as experimental goals. In addition, it is possible that duskytail darters) into Abrams Creek, is treated as threatened regardless of the wild adult stock could also be released Great Smoky Mountains National Park, species’ designation elsewhere in its into the NEP area. Blount County, Tennessee. These fish range. Through section 4(d) of the Act, historically occupied Abrams Creek 2. Biological Information threatened designation allows us greater prior to an ichthyocide treatment in the discretion in devising management The endangered boulder darter is an 1950s. An NEP designation for Abrams programs and special regulations for olive to gray colored fish that lacks the Creek was not needed since the entire such a population. Section 4(d) of the red spots common to most darters. It is watershed occurs on National Park Act allows us to adopt whatever a small fish, approximately 76 Service land, section 7 of the Act regulations are necessary to provide for millimeters (mm) (3 inches (in)) in applies regardless of the NEP the conservation of a threatened species. length. Although boulder darters were designation, and existing human In these situations, the general historically recorded only in the Elk activities and public use of the Creek are regulations that extend most section 9 River system and Shoal Creek, scientists consistent with protection and take prohibitions to threatened species do believe, based on the historical restrictions needed for the reintroduced not apply to that species, and the availability of suitable habitat, that this populations. Natural reproduction by all special 4(d) rule contains the darter once inhabited fast-water rocky four species in Abrams Creek has been prohibitions and exemptions necessary habitat in the and its documented, but the spotfin chub and appropriate to conserve that larger tributaries in Tennessee and appears to be the least successful in this species. Regulations issued under Alabama, from the Paint Rock River in capacity (Rakes et al. 2001; Rakes and section 4(d) for NEPs are usually more Madison County, Alabama, downstream Shute 2002). We have also worked with compatible with routine human to at least Shoal Creek in Lauderdale CFI to translocate, propagate, and activities in the reintroduction area. County, Alabama (U.S. Fish and reintroduce these same four fish into an For the purposes of section 7 of the Wildlife Service 1989). Currently, it is NEP established for a section of the Act, we treat NEPs as a threatened extirpated from Shoal Creek and exists Tellico River, Monroe County, species when the NEP is located within only in the Elk River, Giles and Lincoln Tennessee (67 FR 52420, August 12, a National Wildlife Refuge or National Counties, Tennessee, and Limestone 2002). Propagated fish of these four Park, and section 7(a)(1) and the County, Alabama, and the lower reaches species were released into the Tellico consultation requirements of section of Richland Creek, an Elk River River starting in 2003. It is still too early 7(a)(2) of the Act apply. Section 7(a)(1) tributary, Giles County, Tennessee (U.S. to determine the success of these requires all Federal agencies to use their Fish and Wildlife Service 1989). releases, but it is believed that the authorities to conserve listed species. The spotfin chub is also olive colored, habitat and water quality is sufficient to Section 7(a)(2) requires that Federal but with sides that are largely silvery ensure future success similar to the agencies, in consultation with the and with white lower parts. Large Abrams Creek reintroductions. CFI has Service, insure that any action nuptial males have brilliant turquoise- also successfully propagated boulder authorized, funded, or carried out is not royal blue coloring on the back, side of darters and augmented the only known likely to jeopardize the continued the head, and along the mid-lateral part population of the species in the Elk existence of a listed species or adversely of the body. It is also a small fish, River system in Tennessee. modify its critical habitat. When NEPs approximately 92 millimeters (mm) (4 Based on CFI’s success and intimate are located outside a National Wildlife inches (in)) in length. The spotfin chub knowledge of these two fishes and their Refuge or National Park, we treat the was once a widespread species and was habitat needs, we contracted with CFI to population as proposed for listing and historically known from 24 upper and survey Shoal Creek in order to only two provisions of section 7 would middle Tennessee River system streams, determine if suitable habitat exists in apply—section 7(a)(1) and section including Shoal Creek. It is now extant this creek for reintroductions, and if we 7(a)(4). In these instances, NEPs provide in only four rivers/river systems—the could expand our ongoing fish recovery additional flexibility because Federal Buffalo River at the mouth of Grinders efforts to these waters (Rakes and Shute agencies are not required to consult Creek, Lewis County, Tennessee; the 1999). Rakes and Shute (1999) with us under section 7(a)(2). Section Little Tennessee River, Swain and concluded that about 20 miles (32 km) 7(a)(4) requires Federal agencies to Macon Counties, North Carolina; Emory of Shoal Creek above the backwaters of confer (rather than consult) with the River system (Obed River, Clear Creek, the Wilson Reservoir appeared to Service on actions that are likely to and Daddys Creek), Cumberland and contain suitable reintroduction habitat

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for both fishes. The boulder darter and 45526). The critical habitat map was viable populations of each of these four spotfin chub were last collected from corrected on September 22, 1977 (42 FR fish and anticipate success as this Shoal Creek in the 1880s, and since then 47840). We completed a recovery plan recovery project proceeds. both were apparently extirpated from for this species in November 1983 (U.S. Establishment of viable populations of this reach. We believe the boulder darter Fish and Wildlife Service 1983). We the spotfin chub in both the Tellico was extirpated by the combined effects also established an NEP for the spotfin River under the existing regulation and of water pollution and the chub and three other federally listed in Shoal Creek if this proposed impoundment of lower Shoal Creek fishes for a section of the Tellico River regulation is finalized will help achieve with the construction of Wilson Dam in Monroe County, Tennessee, on an objective in the recovery of this fish. (U.S. Fish and Wildlife Service 1989). August 12, 2002 (67 FR 52420). The However, it will take several years of We believe that similar factors led to the delisting objectives in the recovery plan monitoring to fully evaluate if extirpation of the spotfin chub for are: (1) To protect and enhance existing populations of this fish (and the other similar reasons. However, as a result of populations so that viable populations fishes) have become established and implementation of the Clean Water Act exist in the Buffalo River system, upper remain viable in these historic river by the U.S. Environmental Protection Little Tennessee River, Emory River reaches. Agency (EPA) and State water and system, and lower North Fork Holston Based on the presence of suitable natural resources agencies, and the River; (2) to ensure, through habitat, the positive response of native pollution control measures undertaken reintroduction and/or the discovery of fish species to habitat improvements in by municipalities, industries, and two new populations, that viable Shoal Creek, the presence of similar fish individuals, the creek’s water quality populations exist in two other rivers; species that have similar habitat has greatly improved and its resident and (3) to ensure that no present or requirements to both of these fishes, the fish fauna has responded positively foreseeable threats exist that would recommendations mentioned above, and (Charles Saylor, TVA, pers. comm. 2002; likely impact the survival of any the evaluation of biologists familiar with based on his bioassays). populations. Shoal Creek, we believe that Shoal The recovery criteria for both fishes Creek, from the mouth of Long Branch 3. Recovery Goals/Objectives generally agree that, to reach recovery, to the backwaters of the Wilson The boulder darter (Etheostoma we must: (1) Restore existing Reservoir, is suitable for the wapiti) (Etnier and Williams 1989) was populations to viable levels, (2) reintroduction of the boulder darter and listed as an endangered species on reestablish multiple, viable populations spotfin chub as NEPs. September 1, 1988 (53 FR 33996). We in historical habitats, and (3) eliminate According to P. Rakes (CFI, pers. completed a recovery plan for this foreseeable threats that would likely comm. 1999), the best sites to species in July 1989 (U.S. Fish and threaten the continued existence of any reintroduce these fishes into Shoal Wildlife Service 1989). The downlisting viable populations. The number of Creek are between CM 33 (53 km) and (reclassification from endangered to secure, viable populations (existing and CM 14 (22 km). Therefore, we propose threatened) objectives in the recovery restored) needed to achieve recovery to reintroduce the boulder darter and plan are: (1) To protect and enhance the varies by species and depends on the spotfin chub into historical habitat of existing population in the Elk River and extent of the species’ probable historical the free-flowing reach of Shoal Creek its tributaries, and to successfully range (i.e., species that were once between CM 33 and CM 14. This reach establish a reintroduced population in widespread require a greater number of contains the most suitable habitat for Shoal Creek or other historical habitat or populations for recovery than species the reintroductions. Neither species discover an additional population so that were historically more restricted in currently exists in Shoal Creek or its that at least two viable populations distribution). However, the tributaries. exist; and (2) to complete studies of the reestablishment of historical 5. Reintroduction Procedures species’ biological and ecological populations is a critical component to requirements and implement the recovery of both the boulder darter The dates for these proposed management strategies developed from and spotfin chub. reintroductions, the specific release these studies that have been or are likely sites, and the actual number of to be successful. The delisting objectives 4. Reintroduction Site individuals to be released cannot be are: (1) to protect and enhance the In May 1999 letters to us, the determined at this time. Individual fish existing population in the Elk River and Commissioner of the Alabama that would be used for the proposed its tributaries, and to successfully Department of Conservation and Natural reintroductions primarily will be establish reintroduced populations or Resources (ADCNR) and the Executive artificially propagated juveniles. discover additional populations so that Director of the TWRA requested that we However, it is possible that wild adult at least three viable populations exist consider designating NEPs for the stock could also be released into the (the Elk River population including the spotfin chub and boulder darter and NEP area. Spotfin chub and boulder tributaries must be secure from river reintroducing both species into Shoal darter propagation and juvenile rearing mile (RM) 90 downstream to RM 30); (2) Creek, where they historically occurred. technology are available. The parental to complete studies of the species’ We previously established NEPs for stock of the juvenile fishes for proposed biological and ecological requirements the spotfin chub and three other reintroduction will come from existing and implement successful management federally listed fishes in the Tellico wild populations. In some cases, the strategies; and (3) to ensure that no River, Tennessee, on August 12, 2002 parental stock for juvenile fish will be foreseeable threats exist that would (67 FR 52420). Reintroductions of the returned back to the same wild likely impact the survival of any spotfin chub were initiated in the population. Generally, the parents are populations. Tellico River in 2002 and were permanently held in captivity. The spotfin chub (=turquoise shiner) continued in 2003 along with the first The permanent removal of adults (Cyprinella (=Hybopsis) monacha) reintroductions of the remaining three from the wild for their use in (Cope 1868) was listed as a threatened fish species. These reintroduced fish are reintroduction efforts may occur when species on September 9, 1977, with being monitored. We believe the Tellico one or more of the following conditions critical habitat and a special rule (42 FR River is suitable for the establishment of exist: (1) Sufficient adult fish are

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available within a donor population to 7. Location of Reintroduced Population continue all legal agricultural and sustain the loss without jeopardizing the The NEP area, which encompasses all recreational activities. Because of the species; (2) the species must be removed the sites for the proposed substantial regulatory relief provided by from an area because of an imminent reintroductions, will be located in the NEP designations, we do not believe the threat that is likely to eliminate the free-flowing reach of Shoal Creek, reintroduction of boulder darter and population or specific individuals Lauderdale County, Alabama, and spotfin chub will conflict with existing present in an area; or (3) when the Lawrence County, Tennessee, from the human activities or hinder public use of population is not reproducing. It is most mouth of Long Branch downstream to the area. The ADCNR and the TWRA have previously endorsed the boulder likely that adults will be permanently the backwaters of the Wilson Reservoir. removed because of the first condition: darter and spotfin chub reintroductions Section 10(j) of the Act requires that an sufficient adult fish are available within under NEP designations and are experimental population be a donor population to sustain the loss supportive of this effort. The NEP geographically separate from other wild without jeopardizing the species. An designation will not require the ADCNR populations of the same species. This enhancement of propagation or survival and the TWRA to specifically manage proposed NEP area is totally isolated permit under section 10(a)(1)(A) of the for reintroduced boulder darter and from existing populations of these Act is required. The permit will be spotfin chub. species by large reservoirs, and neither issued before any take occurs, and we The Service, State employees, and fish species is known to occur in or will coordinate these actions with the CFI, Inc., staff will manage the move through large reservoirs. appropriate State natural resources reintroduction. They will closely agencies. Therefore, the reservoirs will act as coordinate on reintroductions, barriers to the species’ downstream monitoring, coordination with 6. Status of Reintroduced Population movement into the Tennessee River and landowners and land managers, and Previous translocations, propagations, its tributaries and ensure that this NEP public awareness, among other tasks and reintroductions of spotfin chubs remains geographically isolated and necessary to ensure successful and boulder darters have not affected easily distinguishable from existing reintroductions of species. the wild populations of either species. wild populations. Based on the fishes’ (a) Mortality: The Act defines The use of artificially propagated habitat requirements, we do not expect ‘‘incidental take’’ as take that is juveniles will reduce the potential them to become established outside the incidental to, and not the purpose of, effects on wild populations. The status NEP. However, if any of the the carrying out of an otherwise lawful of the extant populations of the boulder reintroduced boulder darters and activity such as recreation (e.g., fishing, darter and spotfin chub is such that spotfin chubs move outside the boating, wading, trapping or individuals can be removed to provide designated NEP area, then the fish swimming), forestry, agriculture, and a donor source for reintroduction would be considered to have come from other activities that are in accordance without creating adverse impacts upon the NEP area. In that case, we may with Federal, Tribal, State, and local the parent population. If any of the propose to amend the rule and enlarge laws and regulations. A person may take reintroduced populations become the boundaries of the NEP area to a boulder darter or spotfin chub within established and are subsequently lost, include the entire range of the expanded the experimental population area the likelihood of the species’ survival in populations. provided that the take is unintentional the wild would not be appreciably The designated NEP area for the and was not due to negligent conduct. reduced. Therefore, we have determined spotfin chub in the Tellico River (67 FR Such conduct will not constitute that these reintroduced fish populations 52420) does not overlap or interfere ‘‘knowing take,’’ and we will not pursue in Shoal Creek are not essential to the with this proposed NEP area for Shoal legal action. However, when we have continued existence of the species. We Creek in Tennessee and Alabama evidence of knowing (i.e., intentional) will ensure, through our section 10 because they are geographically take of a boulder darter or spotfin chub, permitting authority and the section 7 separated river reaches. we will refer matters to the appropriate consultation process, that the use of Critical habitat has been designed for authorities for prosecution. We expect from any donor population for the spotfin chub (42 FR 47840, levels of incidental take to be low since these reintroductions is not likely to September 22, 1977); however, the the reintroduction is compatible with jeopardize the continued existence of designation does not include the existing human use activities and the species. proposed NEP area. Critical habitat has practices for the area. Reintroductions are necessary to not been designated for the boulder (b) Special Handling: Service further the recovery of these species. darter. Section 10(j)(2)(C)(ii) of the Act employees and authorized agents acting The NEP designation for the states that critical habitat shall not be on their behalf may handle boulder reintroduction alleviates landowner designated for any experimental darter and spotfin chub for scientific concerns about possible land and water population that is determined to be purposes; to relocate boulder darter and use restrictions by providing a flexible nonessential. Accordingly, we cannot spotfin chub to avoid conflict with management framework for protecting designate critical habitat in areas where human activities; for recovery purposes; and recovering the boulder darter and we have already established, by to relocate boulder darter and spotfin spotfin chub, while ensuring that the regulation, a nonessential experimental chub to other reintroduction sites; to aid daily activities of landowners are population. sick or injured boulder darter and unaffected. In addition, the anticipated spotfin chub; and to salvage dead 8. Management success of these reintroductions will boulder darter and spotfin chub. enhance the conservation and recovery The aquatic resources in the proposed (c) Coordination with landowners and potential of these species by extending reintroduction area are managed by the land managers: The Service and their present ranges into currently ADCNR and TWRA. Multiple-use cooperators identified issues and unoccupied historical habitat. These management of these waters will not concerns associated with the proposed species are not known to exist in Shoal change as a result of the experimental boulder darter and spotfin chub Creek or its tributaries at the present designation. Private landowners within reintroduction before preparing this time. the NEP area will still be allowed to proposed rule. The proposed

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reintroduction also has been discussed Water Act—restoring the biological for the spotfin chub from Hybopsis with potentially affected State agencies, integrity of the Nation’s water. monacha to Cyprinella (=Hybopsis) businesses, and landowners within the The TVA strongly supported the monacha to make this section consistent proposed release area. The land along concept of reintroducing extirpated with the text of the existing regulations the proposed NEP site is privately species, but also cautioned that past for the spotfin chub. owned. International Paper owns a large industrial discharges into Shoal Creek Also, unlike many of the existing tract within the proposed NEP area and could potentially limit or prevent the experimental population regulations at has expressed a strong interest in survival of sensitive fishes in the creek. 50 CFR 17.84, the entry for the working with us to establish these fish The Tennessee Department of experimental population for the Tellico in their stretch of the creek. Most, if not Environment and Conservation River in Tennessee at 50 CFR 17.84(m) all, of the identified businesses are applauded our (TWRA, CFI, and us) does not include a map. We are small businesses engaged in activities efforts to restore Shoal Creek fishes. proposing to add a map for this entry to along the affected reaches of this creek. They also supported the proposed make this section consistent with the Affected State agencies, businesses, reintroductions under NEP status, text of the existing regulations for landowners, and land managers have because the designation will ensure that experimental populations (see Proposed indicated support for the reintroduction, current human uses of Shoal Creek are Regulation Promulgation section below). given due consideration in recovery if boulder darter and spotfin chub Public Comments Solicited released in the proposed experimental efforts for the species. population area are established as an Dr. David Etnier, Department of We intend that any final action NEP and if aquatic resource activities in Ecology and Evolutionary Biology, resulting from this proposal will be as the proposed experimental population University of Tennessee, Knoxville, accurate and as effective as possible. Therefore, we solicit comments or area are not constrained. Tennessee, supported the suggestions from the public, other (d) Potential for conflict with human reintroductions and concluded that he concerned governmental agencies, the activities: We do not believe these saw no compelling reason to delay scientific community, industry, or any proposed reintroductions will conflict them. We will inform the general public of other interested parties concerning this with existing or proposed human the importance of this reintroduction proposed rule. If you wish to comment activities or hinder public use of the project in the overall recovery of the on this proposed rule, you may submit NEP area within Shoal Creek. boulder darter and spotfin chub. The your comments and materials Experimental population special rules designation of the NEP for Shoal Creek concerning this proposal by any one of contain all the prohibitions and and adjacent areas would provide several methods (see ADDRESSES). exceptions regarding the taking of greater flexibility in the management of Comments submitted electronically individual animals. These special rules the reintroduced boulder darter and should be in the body of the e-mail are compatible with routine human spotfin chub. The NEP designation is message itself or attached as a text file activities in the reintroduction area. necessary to secure needed cooperation (ASCII), and should not use special (e) Monitoring: After the first initial of the States, Tribes, landowners, characters or encryption. Please also stocking of these two fish, we will agencies, and other interests in the include ‘‘Attn: Shoal Creek NEP,’’ your monitor annually their presence or affected area. full name, and your return address in absence and document any spawning your e-mail message. Our practice is to behavior or young-of-the-year fish that Finding make comments, including names and might be present. This monitoring will Based on the above information, and home addresses of respondents, be conducted primarily by snorkeling or using the best scientific and commercial available for public review during seining and will be accomplished by data available (in accordance with 50 regular business hours. Respondents contracting with the appropriate species CFR 17.81), the Service finds that may request that we withhold their experts. Annual reports will be releasing the boulder darter and spotfin home address, which we will honor to produced detailing the stocking rates chub into the Shoal Creek Experimental the extent allowable by law. There also and monitoring activities that took place Population Area under a Nonessential may be circumstances in which we during the previous year. We will also Experimental Population designation would withhold a respondent’s identity, fully evaluate these reintroduction will further the conservation of the as allowable by law. If you wish for us efforts after 5 and 10 years to determine species. to withhold your name and/or address, whether to continue or terminate the you must state this request prominently reintroduction efforts. Other Changes to the Regulations at the beginning of your comment. (f) Public awareness and cooperation: The spotfin chub was listed with However, we will not consider On August 26, 1999, we mailed letters critical habitat and a special rule on anonymous comments. To the extent to 80 potentially affected congressional September 9, 1977, under the scientific consistent with applicable law, we will offices, Federal and State agencies, local name of Hybopsis monacha. The current make all submissions from governments, and interested parties to list of endangered and threatened organizations or businesses, and from notify them that we were considering species at 50 CFR 17.11(h), the existing individuals identifying themselves as proposing NEP status in Shoal Creek for experimental population on the Tellico representatives or officials of two fish species. We received a total of River in Tennessee at 50 CFR 17.84(m), organizations or businesses, available four responses, all of which supported and the critical habitat designation at 50 for public inspection in their entirety. our proposed designation and CFR 17.95(e) all use the scientific name Comments and materials received will reintroductions. Cyprinella (=Hybopsis) monacha for the be available for public inspection, by The EPA supported the proposal, spotfin chub. However, the special rule appointment, during normal business commended the ADCNR, TWRA, and us at 50 CFR 17.44(c) uses the scientific hours at the Ecological Services Office for the proposal and its projected name Hybopsis monacha for the spotfin in Cookeville, Tennessee (see beneficial results, and stated that the chub. We are proposing to correct the ADDRESSES). Copies of the proposed rule reintroductions would assist them in text for the special rule at 50 CFR are available on the Internet at http:// meeting one of the goals of the Clean 17.44(c) by changing the scientific name cookeville.fws.gov.

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Peer Review associated regulatory relief, is not This rule will not have an annual effect In conformance with our policy on expected to impact Federal agency on the economy of $100 million or peer review, published on July 1, 1994 actions. Because of the substantial more. It will not cause a major increase (59 FR 34270), we will seek the expert regulatory relief, we do not believe the in costs or prices for consumers; opinions of at least three appropriate proposed reintroduction of these species individual industries; Federal, State, or and independent specialists regarding will conflict with existing or proposed local government agencies; or this proposed rule. The purpose of such human activities or hinder public use of geographic regions. This rule does not review is to ensure that our NEP Shoal Creek or its tributaries. have significant adverse effects on designation is based on scientifically This rule will not create competition, employment, investment, sound data, assumptions, and analyses. inconsistencies with other agencies’ productivity, innovation, or the ability actions or otherwise interfere with an We will send copies of this proposed of United States-based enterprises to action taken or planned by another rule to these peer reviewers compete with foreign-based enterprises. agency. Federal agencies most interested immediately following publication in The intent of this special rule is to in this rulemaking are primarily the the Federal Register. We will invite facilitate and continue the existing EPA and TVA. Both Federal agencies these peer reviewers to comment, commercial activity while providing for support the proposal. Because of the during the public comment period, on the conservation of the species through substantial regulatory relief provided by the specific assumptions and reintroduction into suitable habitat. the NEP designation, we believe the conclusions regarding the proposed reintroduction of the boulder darter and Unfunded Mandates Reform Act NEP. spotfin chub in the areas described will The proposed NEP designation will We will consider all comments and not place any additional requirements information received during the not conflict with existing human activities or hinder public utilization of on any city, county, or other local comment period on this proposed rule municipality. The ADCNR and TWRA, during preparation of a final the area. This rule will not materially affect which manages Shoal Creek’s aquatic rulemaking. Accordingly, the final entitlements, grants, user fees, or loan resources, requested that we consider decision may differ from this proposal. programs, or the rights and obligations these proposed reintroductions under Public Hearings of their recipients. Because there are no an NEP designation. However, they will You may request a public hearing on expected impacts or restrictions to not be required to manage for any reintroduced species. Accordingly, this this proposal. Requests must be made in existing human uses of Shoal Creek as proposed rule will not ‘‘significantly or writing at least 15 days prior to the close a result of this rule, no entitlements, uniquely’’ affect small governments. A of the public comment period and sent grants, user fees, loan programs, or the Small Government Agency Plan is not to the Field Supervisor for the U.S. Fish rights and obligations of their recipients required since this rulemaking does not and Wildlife Service in Tennessee (see are expected to occur. require any action to be taken by local ADDRESSES and DATES sections). This rule does not raise novel legal or policy issues. Since 1984, we have or State governments or private entities. Required Determinations promulgated section 10(j) rules for many We have determined and certify pursuant to the Unfunded Mandates Regulatory Planning and Review (E.O. other species in various localities. Such Reform Act, 2 U.S.C. 1501 et seq., that 12866) rules are designed to reduce the regulatory burden that would otherwise this rulemaking will not impose a cost In accordance with the criteria in exist when reintroducing listed species of $100 million or more in any given Executive Order 12866, this proposed to the wild. year on local or State governments or rule to designate NEP status for the private entities (i.e., it is not a boulder darter and spotfin chub in Regulatory Flexibility Act ‘‘significant regulatory action’’ under Shoal Creek, Lauderdale County, The Department of the Interior the Unfunded Mandates Reform Act.). Alabama and Lawrence County, certifies that this document will not Takings (E.O. 12630) Tennessee, is not a significant have a significant economic effect on a regulatory action subject to Office of substantial number of small entities In accordance with Executive Order Management and Budget review. This under the Regulatory Flexibility Act (5 12630, the rule does not have significant rule will not have an annual economic U.S.C. 601 et seq.). Although most of the takings implications. When effect of $100 million or more on the identified entities are small businesses reintroduced populations of federally economy and will not have an adverse engaged in activities along the affected listed species are designated as NEPs, effect on any economic sector, reaches of this creek, this rulemaking is the Act’s regulatory requirements productivity, competition, jobs, the not expected to have any significant regarding the reintroduced listed environment, or other units of impact on private activities in the species within the NEP are significantly government. The area affected by this affected area. The designation of an NEP reduced. Section 10(j) of the Act can rule consists of a very limited and in this rule will significantly reduce the provide regulatory relief with regard to discrete geographic segment of lower regulatory requirements regarding the the taking of reintroduced species Shoal Creek (about 28 CM (44 km)) in reintroduction of these species, will not within an NEP area. For example, this southwestern Tennessee and northern create inconsistencies with other rule allows for the taking of these Alabama. Therefore, a cost-benefit and agencies’ actions, and will not conflict reintroduced fishes when such take is economic analysis will not be required. with existing or proposed human incidental to an otherwise legal activity, We do not expect this rule to have activity, or Federal, State, or public use such as recreation (e.g., fishing, boating, significant impacts to existing human of the land or aquatic resources. wading, trapping, swimming), forestry, activities (e.g., agricultural activities, agriculture, and other activities that are forestry, fishing, boating, wading, Small Business Regulatory Enforcement in accordance with Federal, State, and swimming, trapping) in the watershed. Fairness Act local laws and regulations. Because of The reintroduction of these federally This rule is not a major rule under 5 the substantial regulatory relief listed species, which will be U.S.C. 804(2), the Small Business provided by NEP designations, we do accomplished under NEP status with its Regulatory Enforcement Fairness Act. not believe the reintroduction of these

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fishes will conflict with existing or Reduction Act (44 U.S.C. 3501 et seq.) the preamble helpful in understanding proposed human activities or hinder require that Federal agencies obtain the rule? (6) What else could we do to public use of the Shoal Creek system. approval from OMB before collecting make the rule easier to understand? A takings implication assessment is information from the public. An agency Send your comments concerning how not required because this rule (1) will may not conduct or sponsor, and a we could make this rule easier to not effectively compel a property owner person is not required to respond to, a understand to: Office of Regulatory to suffer a physical invasion of property collection of information, unless it Affairs, Department of the Interior, and (2) will not deny all economically displays a currently valid control Room 7229, 1849 C Street, NW., beneficial or productive use of the land number. This proposed rule does not Washington, DC 20240. You may also e- or aquatic resources. This rule will include any new collections of mail your comments to: substantially advance a legitimate information that require approval by [email protected]. government interest (conservation and OMB under the Paperwork Reduction Literature Cited recovery of two listed fish species) and Act. will not present a barrier to all Rakes, P. L., P. W. Shute, and J. R. reasonable and expected beneficial use National Environmental Policy Act Shute. 1998. Captive propagation and of private property. We have determined that the issuance population monitoring of rare of this proposed rule is categorically Southeastern fishes. Final Report for Federalism (E.O. 13132) excluded under our National 1997. Field Season and Quarterly In accordance with Executive Order Environmental Policy Act procedures Report for Fiscal Year 1998, prepared 13132, the rule does not have significant (516 DM 6, Appendix 1.4 B (6)). for Tennessee Wildlife Resources Federalism effects to warrant the Agency, Contract No. FA–4–10792–5– Government-to-Government preparation of a Federalism Assessment. 00. 32 pp. Relationship With Tribes This rule will not have substantial Rakes, P. L., and J. R. Shute. 1999. direct effects on the States, in the In accordance with the President’s Results of assays of portions of the relationship between the Federal memorandum of April 29, 1994, French Broad River, Sevier and Knox Government and the States, or on the ‘‘Government-to-Government Relations Counties, Tennessee, and Shoal distribution of power and with Native American Tribal Creek, Lawrence and Wayne Counties, responsibilities among the various Governments’’ (59 FR 229511), Tennessee and Lauderdale Counties, levels of government. The State wildlife Executive Order 13175, and the Alabama, for suitable habitat to agencies in Alabama (ADCNR) and Department of the Interior Manual support reintroduction of rare fishes. Tennessee (TWRA) requested that we Chapter 512 DM 2, we have evaluated Unpublished report prepared by undertake this rulemaking in order to possible effects on federally recognized Conservation Fisheries, Inc., assist the States in restoring and Indian tribes and have determined that Knoxville, Tennessee, for the U.S. recovering their native aquatic fauna. there are no effects. Fish and Wildlife Service, Asheville, Achieving the recovery goals for these Energy Supply, Distribution or Use (E.O. North Carolina. 26 pp. species will contribute to their eventual 13211) Rakes, P.L., P.W. Shute, and J.R. Shute. delisting and their return to State 2001. Captive propagation and management. No intrusion on State On May 18, 2001, the President issued population monitoring of rare policy or administration is expected; Executive Order 13211 on regulations southeastern fishes: 2000. roles or responsibilities of Federal or that significantly affect energy supply, Unpublished Report to Tennessee State governments will not change; and distribution, and use. Executive Order Wildlife Resources Agency, Contract fiscal capacity will not be substantially 13211 requires agencies to prepare No. FA–99–13085–00. directly affected. The special rule Statements of Energy Effects when Rakes, P.L. and J.R. Shute. 2002. Captive operates to maintain the existing undertaking certain actions. This rule is propagation and population relationship between the States and the not expected to significantly affect monitoring of rare southeastern fishes: Federal Government and is being energy supplies, distribution, and use. 2001. Unpublished Report to undertaken at the request of State Therefore, this action is not a significant Tennessee Wildlife Resources agencies (ADCNR and TWRA). We have energy action and no Statement of Agency, Contract No. FA–99–13085– cooperated with the ADCNR and TWRA Energy Effects is required. 00. in the preparation of this proposed rule. Clarity of This Regulation (E.O. 12866) U.S. Fish and Wildlife Service. 1983. Therefore, this rule does not have Spotfin Chub Recovery Plan. Atlanta, Executive Order 12866 requires each significant Federalism effects or GA. 46 pp. implications to warrant the preparation agency to write regulations that are easy ll1989. Boulder Darter Recovery Plan. of a Federalism Assessment pursuant to to understand. We invite your Atlanta, GA. 15 pp. the provisions of Executive Order comments on how to make this rule Author 13132. easier to understand, including answers to questions such as the following: (1) The principal author of this proposed Civil Justice Reform (E.O. 12988) Are the requirements in the rule clearly rule is Timothy Merritt (see ADDRESSES In accordance with Executive Order stated? (2) Does the rule contain section). 12988, the Office of the Solicitor has technical language or jargon that determined that this proposed rule does interferes with its clarity? (3) Does the List of Subjects in 50 CFR Part 17 not unduly burden the judicial system format of the rule (grouping and order Endangered and threatened species, and that it meets the requirements of of sections, use of headings, Exports, Imports, Reporting and sections (3)(a) and (3)(b)(2) of the Order. paragraphing, etc.) aid or reduce its recordkeeping requirements, and clarity? (4) Would the rule be easier to Transportation. Paperwork Reduction Act understand if it were divided into more Office of Management and Budget (but shorter) sections? (5) Is the Proposed Regulation Promulgation (OMB) regulations at 5 CFR 1320, which description of the rule in the Accordingly, we propose to amend implement provisions of the Paperwork SUPPLEMENTARY INFORMATION section of part 17, subchapter B of chapter I, title

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50 of the Code of Federal Regulations, Authority: 16 U.S.C. 1361–1407; 16 U.S.C. under FISHES for ‘‘Chub, spotfin,’’ and as set forth below: 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– ‘‘Darter, boulder,’’ to read as follows: 625, 100 Stat. 3500, unless otherwise noted. PART 17—[AMENDED] § 17.11 Endangered and threatened 2. Amend § 17.11(h) by revising the wildlife. 1. The authority citation for part 17 existing entries in the List of * * * * * continues to read as follows: Endangered and Threatened Wildlife (h) * * *

Species Vertebrate population Historic range where endangered or Status When Critical Special Common name Scientific name threatened listed habitat rules

******* FISHES

******* Chub, spotfin (=turquoise Cyprinella (=Hybopsis) U.S.A. (AL, GA, NC, TN, Entire, except where list- T ...... 28, 732 17.95(e) 17.44(c) shiner). monacha. VA). ed as an experimental population.. Do ...... do ...... do ...... Tellico River, from the XN ...... 732 NA 17.84(m) backwaters of the Tellico Reservoir (about Tellico River mile 19 (30 km)) up- stream to Tellico River mile 33 (53 km), in Monroe County, TN. Do ...... do ...... do ...... Shoal Creek (from Shoal ...... NA 17.84(n) Creek mile 41.7 (66.7 km)) at the mouth of Long Branch, Law- rence County, TN, downstream to the backwaters of Wilson Reservoir (Shoal Creek mile 14 (22 km)) at Goose Shoals, Lauderdale County, AL, including the lower 5 miles (8 km) of all tributaries that enter this reach.

******* Darter, boulder ...... Etheostoma wapiti ...... U.S.A. (AL, TN) ...... Entire, except where list- E ...... 322 NA NA ed as an experimental population. Do ...... do ...... do ...... Shoal Creek (from Shoal XN ...... NA 17.84(n) Creek mile 41.7 (66.7 km)) at the mouth of Long Branch, Law- rence County, TN, downstream to the backwaters of Wilson Reservoir (Shoal Creek mile 14 (22 km)) at Goose Shoals, Lauderdale County, AL, including the lower 5 miles (8 km) of all tributaries that enter this reach.

*******

§ 17.44 [Amended] 4. Amend § 17.84 by adding new (m) * * * 3. Amend § 17.44(c) by removing the paragraphs (m)(5) and (n), including (5) Note: Map of the NEP area for spotfin words ‘‘spotfin chub (Hybopsis maps, to read as follows: chub, duskytail darter, and smoky madtom in monacha)’’ and adding, in their place, Tennessee follows: the words ‘‘spotfin chub (Cyprinella § 17.84 Special rules—vertebrates. (=Hybopsis) monacha)’’. * * * * * BILLING CODE 4310–55–P

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(n) Spotfin chub (= turquoise shiner) of the NEP to include the entire range export by any means whatsoever any of (Cyprinella (=Hybopsis) monacha), of the expanded population. the identified fishes, or parts thereof, boulder darter (Etheostoma wapiti). (iii) We do not intend to change the that are taken or possessed in violation NEP designations to ‘‘essential (1) Where are populations of these of paragraph (n)(3) of this section or in experimental,’’ ‘‘threatened,’’ or fishes designated as nonessential violation of the applicable State fish and ‘‘endangered’’ within the NEP area. experimental populations (NEP)? wildlife laws or regulations or the Act. Additionally, we will not designate (i) The NEP area for the boulder darter critical habitat for these NEPs, as (iv) You may not attempt to commit, and the spotfin chub is within the provided by 16 U.S.C. 1539(j)(2)(C)(ii). solicit another to commit, or cause to be species’ historic ranges and is defined as (2) What take is allowed in the NEP committed any offense defined in follows: Shoal Creek (from Shoal Creek area? Take of these species that is paragraph (n)(3) of this section. mile 41.7 (66.7 km)) at the mouth of accidental and incidental to an (4) How will the effectiveness of these Long Branch, Lawrence County, TN, otherwise legal activity, such as reintroductions be monitored? After the downstream to the backwaters of Wilson recreation (e.g., fishing, boating, wading, initial stocking of these two fish, we Reservoir (Shoal Creek mile 14 (22 km)) trapping or swimming), forestry, will monitor annually their presence or at Goose Shoals, Lauderdale County, agriculture, and other activities that are absence and document any spawning AL, including the lower 5 miles (8 km) in accordance with Federal, State, and behavior or young-of-the-year fish that of all tributaries that enter this reach. local laws and regulations, is allowed. might be present. This monitoring will (3) What take of these species is not (ii) None of the fishes named in be conducted primarily by snorkeling or allowed in the NEP area? seining and will be accomplished by paragraph (n) of this section are (i) Except as expressly allowed in currently known to exist in Shoal Creek contracting with the appropriate species paragraph (n)(2) of this section, all the experts. We will produce annual reports or its tributaries. Based on the habitat provisions of § 17.31(a) and (b) apply to requirements of these fishes, we do not detailing the stocking rates and the fishes identified in paragraph (n)(1) monitoring activities that took place expect them to become established of this section. during the previous year. We will also outside the NEP area. However, if any (ii) Any manner of take not described fully evaluate these reintroduction individuals of either of the species move under paragraph (n)(2) of this section is upstream or downstream or into prohibited in the NEP area. We may efforts after 5 and 10 years to determine tributaries outside the designated NEP refer unauthorized take of these species whether to continue or terminate the area, we would presume that they came to the appropriate authorities for reintroduction efforts. from the reintroduced populations. We prosecution. (5) Note: Map of the NEP area for spotfin would then amend paragraph (n)(1)(i) of (iii) You may not possess, sell, chub and boulder darter in Tennessee and this section and enlarge the boundaries deliver, carry, transport, ship, import, or Alabama follows:

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Dated: September 20, 2004. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 04–23587 Filed 10–20–04; 8:45 am] BILLING CODE 4310–55–C

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