Federal Register / Vol. 66, No. 111 / Friday, June 8, 2001 / Proposed Rules 30853
1988). This recommended practice (ii) Average successful requests per (xiv) Request Report (measured in standardizes various terms, day (measured in number of files). This number of files/pages by individual abbreviations, and acronyms associated is defined as reports of the average URL). This is defined as which files with On-board diagnostics. Vehicle successful requests per day of all files were downloaded. manufacturers shall comply with J1930 which have been requested, including (xv) Referrer Report (measured in beginning with Model Year 2003. pages, graphics, etc. number of files/pages by individual (ii) For OBD vehicle communications, (iii) Total successful requests for referring URL). This is defined as which vehicle manufacturers shall comply pages [report on number of pages pages linked to your files. with SAE Recommended Practice J2284, (including graphic interchange formats (xvi) Browser Summary (measured in ‘‘High Speed CAN (HSC) for Vehicle (GIFs) and joint photographic expert number of files/pages by browser type, Applications at 500 KBPS.’’ (February group (JPEG) images, i.e. electronic i.e., Netscape, Internet Explorer). This is 1999). This recommended practice images such as wiring or other diagrams defined as the versions of browsers by defines a level of standardization in the or pictures). This is defined as the total vendor. implementation of a 500 KBPS vehicle successful requests counts all the (xvii) Browser Report (measured in communication network using the documents that were returned or where number of files/pages by browser type, Controller Area Network (CAN) the document was requested but was i.e., Mozilla 4.0). This is defined as a list protocol. Vehicle manufacturers shall not needed because it had not been of the detailed versions of browsers comply with J2284 beginning with recently modified and the user could used. Model Year 2003. use a cached copy. (18) Prohibited Acts, Liability and (iii) For pass-through reprogramming (iv) Total failed requests (measured in Remedies. (i) It is a prohibited act for capabilities, vehicle manufacturers shall number of files). This is defined as the any person to fail to promptly provide comply with SAE Recommended total failed requests counts all the files or cause a failure to promptly provide Practice J1962 (FEB 98), ‘‘Diagnostic which were requested but failed information as required by this Connector’’. This recommended practice requests because they could not be paragraph (f) or to otherwise fail to specifies the boundaries within the found or is read-protected. This comply or cause a failure to comply passenger compartment where vehicle includes pages, graphics, etc. with any provision of this paragraph (f). manufacturers may place the OBD (v) Total redirected requests (ii) Any person who fails or causes the diagnostic link connector. Vehicle (measured in number of files). This is failure to comply with any provision of manufacturers shall comply with J1962 defined as redirected requests that this subsection is liable for a violation beginning with model year 2003. indicate that the user was directed to a of that provision. A corporation is (iv) For pass-through reprogramming different file instead. presumed liable for any violations of capabilities, vehicle manufacturers shall (vi) Number of distinct files requested this subpart that are committed by any comply with SAE Recommended (measured in number of files). This is of its subsidiaries, affiliates or parents Practice J2534 (DEC 00), ‘‘Specifications defined as the number of different file that are substantially owned by it or for Pass-Through Reprogramming.’’ This types that were requested (i.e., html, substantially under its control. recommended practice provides pdf, txt). (iii) Any person who violates a (vii) Number of distinct hosts served technical specifications and information provision in this paragraph (f) shall be (measured in number of files). This is that vehicle manufacturers must supply subject to a civil penalty of not more defined as reports on the number of to aftermarket tool and equipment than $27,500 per day for each violation. different computers where requests have companies to develop aftermarket pass- In addition, such person shall be liable come from. for all other remedies set forth in Title through reprogramming tools. Vehicle (viii) Corrupt logfile lines (measured manufacturers shall comply with J2534 II of the Clean Air Act, remedies in number of lines). This is defined as pertaining to provisions of Title II of the beginning with model year 2003. the lines in the logfile that were (17) Reporting Requirements. Clean Air Act, or other applicable unreadable by the computer. provisions of law. Manufacturers shall provide to the (ix) Total data transferred (measured Administrator reports on an annual in bytes). This is defined as the total [FR Doc. 01–14471 Filed 6–7–01; 8:45 am] basis and upon request of the amount of data transferred from one BILLING CODE 6560–50–P Administrator, that describe the place to another. performance of their individual Web (x) Average data transferred per day sites. These annual reports shall be (measured in bytes). This is defined as DEPARTMENT OF THE INTERIOR submitted to the Administrator the average amount of data transferred electronically utilizing non-proprietary per day from one place to another. Fish and Wildlife Service software in the format as agreed to by (xi) Daily Summary (measured in the Administrator and the number of files/pages by day of week). 50 CFR Part 17 manufacturers. These annual reports This is defined as the total number of shall include, at a minimum, monthly requests in each day of the week, over RIN 1018–AF96 measurements of the following the time period given at the very top of Endangered and Threatened Wildlife parameters: the report. (i) Total successful requests. This is (xii) Daily Report (measured in and Plants; Proposed Establishment of measured in number of files (including number of files/pages by day of month). Nonessential Experimental Population graphic interchange formats (GIFs) and This is defined as how many requests Status for 4 Fishes Into the Tellico joint photographic expert group (JPEG) there were in each day of a specific River, From the Backwaters of Tellico images, i.e. electronic images such as month. Reservoir Upstream to Tellico River wiring or other diagrams or pictures). (xiii) Hourly Summary (measured in Mile 33, in Monroe County, Tennessee This is defined as the total successful number of files/pages by hour of day). AGENCY: Fish and Wildlife Service, requests counts all the files which have This is defined as the total number of Interior. been requested, including pages, requests for each hour of the day, over ACTION: Proposed rule. graphics, etc. a specific time period.
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SUMMARY: We, the Fish and Wildlife Under the Act, species listed as For the purposes of section 7 of the Service (Service), propose to endangered or threatened are afforded Act, in situations where there is a reintroduce two federally listed protection primarily through the nonessential experimental population endangered fishes—the duskytail darter prohibitions of section 9 and the located within a National Wildlife (Etheostoma percnurum) and smoky requirements of section 7. Section 9 of Refuge or National Park (treated as madtom (Noturus baileyi)—and two the Act prohibits the take of a listed threatened), section 7(a)(1) and the federally listed threatened fishes—the species. ‘‘Take’’ is defined by the Act as consultation requirements of section yellowfin madtom (Noturus flavipinnis) harass, harm, pursue, hunt, shoot, 7(a)(2) of the Act would apply. Section and spotfin chub (=turquoise shiner) wound, trap, capture, or collect, or 7(a)(1) requires all Federal agencies to (Cyprinella (=Hybopsis) monacha)—into attempt to engage in any such conduct. use their authorities to conserve listed the Tellico River, between the Section 7 of the Act outlines the species. Section 7(a)(2) requires that backwaters of the Tellico Reservoir procedures for Federal interagency Federal agencies consult with the (approximately Tellico River mile cooperation to conserve federally listed Service before authorizing, funding, or (TRM) 19 (30.4 kilometers (km))) and species and protect designated critical carrying out any activity that would TRM 33 (52.8 km), near the Tellico habitats. It mandates all Federal likely jeopardize the continued Ranger Station, in Monroe County, agencies to determine how to use their existence of a listed species or adversely Tennessee. These populations would be existing authorities to further the modify its critical habitats. When NEPs established as nonessential purposes of the Act to aid in recovering are located outside a National Wildlife experimental populations (NEPs) in listed species. It also states that Federal Refuge or National Park, only two accordance with section 10(j) of the agencies will, in consultation with the provisions of section 7 would apply; Endangered Species Act of 1973, as Service, insure that any action they section 7(a)(1) and section 7(a)(4). In amended (Act). This area is identified as authorize, fund, or carry out is not likely these instances, NEPs provide the proposed NEP Area. We would to jeopardize the continued existence of additional flexibility because Federal manage these populations under a listed species or result in the agencies are not required to consult provisions of this special rule. destruction or adverse modification of with us under section 7(a)(2). Section designated critical habitat. Section 7 of 7(a)(4) requires Federal agencies to DATES: Comments must be received by the Act does not affect activities informally confer with the Service on August 7, 2001. undertaken on private lands unless they actions that are likely to jeopardize the ADDRESSES: Send comments and are authorized, funded, or carried out by continued existence of a proposed information concerning this proposal to a Federal agency. species. However, since we determined the State Supervisor, Asheville Field Section 10(j) is designed to increase that the NEP is not essential to the Office, U.S. Fish and Wildlife Service, our flexibility in managing an continued existence of the species, it is 160 Zillicoa Street, Asheville, North experimental population by allowing us very unlikely that we would ever Carolina 28801. Comments and to treat the population as threatened, determine jeopardy for a project materials received will be available for regardless of the species’ designation impacting a species within an NEP. public inspection, by appointment, elsewhere in its range. Threatened Individuals used to establish an during normal business hours at the designation gives us more discretion in experimental population may come above address. developing and implementing from a donor population, provided their FOR FURTHER INFORMATION CONTACT: Mr. management programs and special removal is not likely to jeopardize the Richard G. Biggins at 828/258–3939, ext. regulations for such a population and continued existence of the species, and 228; facsimile 828/258–5330; or e-mail allows us to develop any regulations we appropriate permits are issued in [email protected]. consider necessary to provide for the accordance with our regulations (50 conservation of a threatened species. In CFR 17.22) prior to their removal. SUPPLEMENTARY INFORMATION: situations where we have experimental 2. Biological: Since the mid-1980s, Background populations, most of the section 9 Conservation Fisheries, Inc. (CFI), with prohibitions that apply to threatened support from us, the Tennessee Wildlife 1. Legislative: Congress made species no longer apply, and the special Resources Agency (TWRA), U.S. Forest significant changes to the Endangered rule contains the prohibitions and Service (USFS), National Park Service, Species Act of 1973, as amended (Act), exceptions necessary and appropriate to Tennessee Valley Authority (TVA), and with the addition of section 10(j), which conserve that species. Regulations for Tennessee Aquarium (TA), has provides for the designation of specific NEPs may be developed to be more reintroduced the smoky madtom, reintroduced populations of listed compatible with routine human duskytail darter, yellowfin madtom, and species as ‘‘experimental populations.’’ activities in the reintroduction area. spotfin chub into Abrams Creek, within Previously, we had authority to Based on the best available the Great Smoky Mountains National reintroduce populations into information, we must determine Park, Blount County, Tennessee. We unoccupied portions of a listed species’ whether experimental populations are have evidence that all four species are historical range when doing so would ‘‘essential,’’ or ‘‘nonessential,’’ to the becoming reestablished in Abrams foster the conservation and recovery of continued existence of the species. An Creek (Rakes et al. 1998). Based on this the species. However, local citizens experimental population that is success and CFI’s intimate knowledge of often opposed these reintroductions essential to the survival of the species the fishes’ habitat needs, we contracted because they were concerned about the is treated as a threatened species. An them to survey the Tellico River to placement of restrictions and experimental population that is determine if we could expand the prohibitions on Federal and private nonessential to the survival of the recovery program for these fishes into activities. Under section 10(j), the species is also treated as a threatened the Tellico River. Secretary of the Department of the species. However, for section 7 CFI determined that the Tellico River Interior can designate reintroduced interagency cooperation purposes, if the appears to contain ideal habitat for the populations established outside the NEP is located outside of a National reintroduction of the four fishes, species’ current range, but within its Wildlife Refuge or National Park, it is between the backwaters of the Tellico historical range, as ‘‘experimental.’’ treated as a species proposed for listing. Reservoir (approximately Tellico River
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mile (TRM) 19 (30.4 kilometers (km))) The downlisting criteria We listed the yellowfin madtom and TRM 33 (52.8 km), near the Tellico (reclassification from endangered to (Noturus flavipinnis) (Taylor 1969) as a Ranger Station, in Monroe County, threatened status) in the Duskytail threatened species on September 9, Tennessee (Rakes and Shute 1998). CFI Darter Recovery Plan are: (1) Protect and 1977 (42 FR 45527), and finalized the concluded that the Tellico River’s enhance existing populations and recovery plan for this species in June overall water quality and clarity, reestablish a population so that at least 1983 (Service 1983a). This fish was combined with substrate quality, were three distinct viable duskytail darter probably once widely distributed in the somewhat less optimal than Citico populations exist, (2) complete studies Tennessee drainage, from the Creek, where three of the four species of the species’ biological and ecological Chickamauga system upstream (Service currently exist. However, they also requirements, (3) develop management 1983a). However, the yellowfin madtom concluded that the Tellico River strategies from these studies that are or was historically known from only six contains as good or better habitat than are likely to be successful, and (4) streams—South Chickamauga Creek, that which exists in Abrams Creek, ensure that no foreseeable threats exist Catoosa County, Georgia; Hines Creek, a where reintroductions of all four species which would likely threaten the Clinch River tributary, Anderson are apparently succeeding. continued existence of the three County, Tennessee; North Fork Holston Rakes and Shute (1998) reported that aforementioned viable populations. The River, Smyth County, Virginia; Copper there are no confirmed historical delisting criteria in the recovery plan Creek, Scott and Russell Counties, collection records for these fishes from are: (1) Protect and enhance existing Virginia; Powell River, Hancock County, the Tellico River. However, they believe populations and reestablish populations Tennessee; and Citico Creek, Monroe that all four species probably occurred so that at least five distinct viable County, Tennessee (Service 1983a). in the river historically. They based duskytail darter populations exist, (2) Although there are no historical their conclusion on two facts—(1) That complete studies of the species’ yellowfin madtom records from Abrams the Tellico River is a Little Tennessee biological and ecological requirements, Creek, Blount County, Tennessee, tributary just downstream from the (3) develop management strategies from Lennon and Parker (1959) reported that mouths of Abrams and Citico Creeks (all these studies that are or are likely to be the brindled madtom (the name given four fishes historically occurred in these successful, and (4) ensure that no by early collectors for the yellowfin) creeks) and (2) that all three streams foreseeable threats exist which would was collected during a reclamation drain the same physiographic provinces likely threaten the continued existence project of lower Abrams Creek in 1957. (Blue Ridge and Ridge and Valley). of the five aforementioned viable Based on this observation, Dinkins and Additionally, all four species populations. Shute (1996) and others believe the We listed the smoky madtom historically had access to the Tellico species once occurred in the middle and (Noturus baileyi) (Taylor 1969) as an River. Prior to the construction of lower reaches of Abrams Creek. Three endangered species on October 26, 1984 reservoirs on the main stem of the Little small populations still persist—Citico (49 FR 43065), and finalized the Tennessee River, no physical barriers Creek, Copper Creek, and the Powell recovery plan for this species in August prevented the movement of these fishes River. CFI has reintroduced the species 1985 (Service 1985). Although once into Abrams Creek, and a population is among Abrams Creek, Citico Creek, and probably more widespread in tributaries apparently becoming reestablished the Tellico River (Peggy Shute, TVA, to the lower Little Tennessee River (Rakes et al. 1998). personal communication, 1998). system, this species was historically The delisting criteria in the Yellowfin 3. Recovery Efforts: We listed the collected from only two creeks—Abrams Madtom Recovery Plan are to: (1) duskytail darter (Etheostoma Creek, Blount County, Tennessee, and Protect and enhance existing percnurum) (Jenkins 1994) as an Citico Creek, Monroe County, Tennessee populations and/or reestablish endangered species on April 27, 1993 (Service 1985). The Citico Creek populations so viable populations exist (58 FR 25758), and completed the population is still extant. CFI has in Copper Creek, Citico Creek, and the recovery plan for this species in March reintroduced smoky madtom into Powell River; (2) recreate and/or 1994 (Service 1994). Although likely Abrams Creek, and a population is discover two additional viable once more widespread in the upper apparently becoming reestablished populations; (3) ensure that noticeable Tennessee and middle Cumberland (Rakes et al. 1998). improvements in coal-related problems River systems, the species was The downlisting criteria in the Smoky and substrate quality exist in the Powell historically known from only six Madtom Recovery Plan are: (1) Protect River; and (4) protect the species and its populations—Little River and Abrams the existing Citico Creek population and habitat in all five rivers from present Creek, Blount County, Tennessee; Citico reintroduce the species into Abrams and foreseeable threats that may Creek, Monroe County, Tennessee; Big Creek so that at least two distinct viable adversely affect essential habitat or the South Fork Cumberland River, Scott smoky madtom populations exist and survival of any of the populations. County, Tennessee, and McCreary (2) eliminate threats to the species by We listed the spotfin chub (=turquoise County, Kentucky; Copper Creek and implementing management activities. shiner) (Cyprinella (=Hybopsis) the Clinch River (this is one The delisting criteria in the recovery monacha) (Cope 1868) as a threatened population), Scott County, Virginia; and plan are to: (1) Protect and enhance species on September 9, 1977 (42 FR the South Fork Holston River, Sullivan existing populations and reestablish 45527), and finalized the recovery plan County, Virginia (Service 1994). The populations so that at least four distinct for this species in November 1983 South Fork Holston River population is viable smoky madtom populations (Service 1983b). This once widespread apparently extirpated. The Little River, (Abrams and Citico Creeks, plus two species was historically known from 24 Copper Creek/Clinch River, and Big others) exist; (2) implement successful streams in the upper and middle South Fork Cumberland River management plans for the populations Tennessee River system. It is now extant populations are extant but small. CFI in Abrams and Citico Creeks; and (3) in only four rivers/river systems—the has reintroduced the duskytail darter protect all four populations and their Buffalo River at the mouth of Grinders into Abrams Creek, where a population habitat from present and foreseeable Creek, Lewis County, Tennessee; Little is apparently becoming reestablished threats that could interfere with the Tennessee River, Swain and Macon (Rakes et al. 1998). survival of any of the populations. Counties, North Carolina; Emory River
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system (Obed River, Clear Creek, and four species and currently supports all Status of Reintroduced Populations Daddys Creek) Cumberland and Morgan but the spotfin chub; (2) CFI’s habitat We determine that these proposed Counties, Tennessee; Holston River and analysis indicated that reintroductions reintroduced fish populations are not its tributary, the North Fork Holston of these fishes into the Tellico River essential to the continued existence of River, Hawkins and Sullivan Counties, have a greater potential for success than the species. Therefore, we believe it is Tennessee, and Scott and Washington reintroductions into any other tributary appropriate to designate these Counties, Virginia (Service 1983b; P. of the Little Tennessee River system, populations as nonessential in Shute, TVA, personal communication, except Abrams Creek, where apparently accordance with section 10(j) of the Act. 1998). CFI has reintroduced the species successful reintroductions are already We will ensure, through our section 10 into Abrams Creek, and there are occurring; (3) apparently, no fish permit authority and the section 7 indications that it may become collections were made from the Tellico consultation process, that the use of reestablished (Rakes et al. 1998). River prior to the 1960s, so the animals from any donor population for The delisting criteria in the Spotfin extirpation of these fishes could have Chub Recovery Plan are to: (1) Protect these reintroductions is not likely to occurred prior to the 1960s due to jeopardize the continued existence of and enhance existing populations and/ siltation caused by heavy logging in the or reestablish populations so that viable the species. Therefore, if any of the watershed around the turn of the reintroduced populations become populations exist in the Buffalo River century; and (4) none of these species system, upper Little Tennessee River, established and are subsequently lost, it displays any biological attributes that would not reduce the likelihood of the Emory River system, and lower North suggest they could become a problem if Fork Holston River and (2) ensure, species’ survival in the wild or successfully established into the Tellico jeopardize its continued existence. In through reintroductions and/or the River. discovery of new populations, that two fact, the anticipated success of these We propose to reintroduce reintroductions will enhance the other viable populations exist. populations of the duskytail darter, The recovery criteria for all four of conservation and recovery potential of smoky madtom, yellowfin madtom, and these species by extending their present these fishes generally agree that, to spotfin chub (=turquoise shiner) into the reach recovery, we must: (1) Restore ranges into currently unoccupied Tellico River, between the backwaters of existing populations to viable levels, (2) historic habitat. These species are not the Tellico Reservoir (approximately reestablish viable populations in known to exist in the Tellico River or Tellico River mile (TRM) 19 (30.4 historical habitats, and (3) eliminate its tributaries at the present time. kilometers (km))) and TRM 33 (52.8 foreseeable threats that would likely km), near the Tellico Ranger Station, in Location of Reintroduced Populations threaten the continued existence of any Monroe County, Tennessee and to viable populations. The number of Sites for the proposed reintroduction designate these populations as NEPs. secure, viable populations (existing and of these four fish species into the Tellico This area is identified as the proposed restored) that are needed to achieve River, Monroe County, Tennessee, are NEP Area. recovery varies by species and depends within the proposed NEP Area. This on the extent of the species’ probable 5. Reintroduction Procedures: At this area is totally isolated from existing historical range (i.e., species that were time, we cannot determine the proposed populations of these species by large once widespread require a greater dates for these reintroductions, the reservoirs, and none of these fishes are number of populations for recovery than specific sites where the fish species will known to occur or move through large species that were historically more be released, and the actual number of reservoir habitat. Therefore, these restricted in distribution). However, the individuals to be released. We will reservoirs will act as barriers to the reestablishment of historical release primarily artificially propagated downstream expansion of these species populations is a critical component to juveniles, but we could release some into the main stem of the Little the recovery of all four species. wild adult stock. Propagation and Tennessee River and its tributaries and 4. Reintroduction Site: In March 1998, juvenile rearing technology is available ensure that these populations will the Executive Director of the TWRA for the spotfin chub and the duskytail remain geographically isolated. stated that he supports the conclusions darter. Limited numbers of smoky and Management of Rakes and Shute (1998), and yellowfin madtom juveniles can be requested that we consider designating reared using eggs and larvae taken from We do not believe these the Tellico River a NEP Area and the wild. However, madtom artificial reintroductions will conflict with reintroducing the four fishes. He further propagation technology, which is existing or proposed human activities or stated that (1) the Tellico River was the needed to produce large numbers of hinder public utilization of the NEP probable historical habitat of the juvenile madtoms, will likely not be Area. Experimental population special duskytail darter, smoky madtom, available for 2 to 3 years. rules contain all the prohibitions and yellowfin madtom, and spotfin chub; The parents of the juveniles exceptions regarding the taking of and (2) the Tellico River appeared to reintroduced into the NEP Area will individual animals. These special rules have almost ideal habitat for the come from existing wild populations. are more compatible with routine reintroduction of all four fishes. The two madtoms and duskytail darters human activities in the reintroduction Dr. David Etnier, Department of will come from a nearby Little area. Ecology and Evolutionary Biology, Tennessee River tributary—Citico Creek, Based on the habitat requirements of University of Tennessee, Knoxville, Monroe County, Tennessee. The spotfin these four fishes, we do not expect them Tennessee, stated in April 1998, that he chubs will come from upstream in the to become established outside the NEP supports the reintroduction of the four Little Tennessee River, Swain County, Area. However, if any of the four species species into the Tellico River. Dr. Etnier North Carolina. In some cases the move upstream or downstream or into presented several reasons for his parents will be returned to the wild tributaries outside of the designated support: (1) The mouth of the Tellico population from which they were taken. NEP Area, we would presume that the River is approximately 10 miles (16 km) However, in most cases the parents will animals had come from the downstream of the mouth of Citico be permanently relocated to propagation reintroduced populations. The rule will Creek, which historically supported all facilities. be amended and the boundaries of the
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NEP Area would be enlarged to include during regular business hours. restrictions to existing human uses of the entire range of the expanded Individual respondents may request that the Tellico River as a result of this rule, population. we withhold their home address from no entitlements, grants, user fees, loan the rulemaking record, which we will programs, or the rights and obligations Preliminary Notification and Comment honor to the extent allowable by law. In of their recipients are expected to occur. On June 26, 1998, we mailed letters to some circumstances, we would This rule does not raise novel legal or 67 potentially affected congressional withhold from the rulemaking record a policy issues. We have previously offices, Federal and State agencies, local respondent’s identity, as allowable by promulgated section 10(j) rules for governments, and interested parties that law. If you wish for us to withhold your experimental populations of other listed we were considering proposing NEP name and/or address, you must state threatened or endangered species in status for four fish species in the Tellico this request prominently at the various localities since 1984. The rules River. We received four written beginning of your comment. However, are designed to reduce the regulatory responses. we will not consider anonymous burden that would otherwise exist when The U.S. Forest Service, which is comments. We will make all reintroducing listed species to the wild. significantly involved in reintroduction submissions from organizations or Regulatory Flexibility Act efforts for these fishes into Abrams businesses available for public Creek, supports proposed inspection in their entirety. The Department of the Interior reintroductions into the Tellico River as certifies that this document will not NEPs and offered to cooperate with us Public Hearings have a significant economic effect on a and TWRA in the reintroductions. You may request a public hearing on substantial number of small entities The Tennessee Department of this proposal. Your request for a hearing under the Regulatory Flexibility Act (5 Environment and Conservation, must be made in writing and filed U.S.C. 601 et seq.). Although most, if Division of Natural Heritage, supports within 45 days of the date of publication not all, of the identified entities are the reintroduction of the four fishes into of the proposal in the Federal Register. small businesses engaged in activities the Tellico River. They believe that Such requests for a hearing must be along the affected reach of the stream, designating the reintroduced addressed to the State Supervisor for the this rule will have no economic effect in populations as NEPs is appropriate Fish and Wildlife Service in North that it will operate to reduce or remove because it should enable Federal, State, Carolina (see ADDRESSES section). regulatory restrictions (see above for and local authorities to continue to discussion of expected impacts). Required Determinations promote the conservation and recovery Small Business Regulatory Enforcement of these fishes. Regulatory Planning and Review Fairness Act (SBREFA) The Tennessee Chapter of the American Fisheries Society supports the This rule is not a significant rule and This rule is not a major rule under 5 reintroduction of these fishes into the is not subject to review by the Office of U.S.C. 804(2), the Small Business Tellico River under NEP status. They Management and Budget (OMB) under Regulatory Enforcement Fairness Act. concluded that: (1) Although there is Executive Order 12866. This rule will This rule does not have an annual effect little information on the historical not have an effect of $100 million or on the economy of $100 million or more environmental conditions in the Tellico more on the economy. It will not on local or State governments or private River, the river now supports a adversely affect in a material way the entities. This rule will not cause a major relatively healthy native fish economy, productivity, competition, increase in costs or prices for community with respect to species jobs, the environment, public health or consumers, individual industries, diversity, species composition, fish safety, or State, local, or tribal Federal, State, or local government abundance, and fish health; (2) the river governments or communities. The area agencies, or geographic regions. This appears to contain suitable habitat for affected by this rule consists of a very rule does not have significant adverse the survival of all four species; (3) all limited and discrete geographic segment effects on competition, employment, four species probably historically (only 14 river miles (22.4 km)) of the investment, productivity, innovation, or occupied the river; and (4) designating Tellico River in Monroe County, the ability of U.S.-based enterprises to reintroductions as NEPs greatly relaxes Tennessee. No significant impacts to compete with foreign-based enterprises. regulatory requirements and makes existing human activities on the river as The intent of this special rule is to introduced populations more a result of this rule are expected. facilitate and continue the existing compatible with other resource use in This rule will not create a serious commercial activity, while providing for the watershed. inconsistency or otherwise interfere the conservation of species through The Southeast Aquatic Research with an action taken or planned by reintroduction into suitable habitat. another agency. Designating Institute (SARI) fully supports these Unfunded Mandates Reform Act reintroductions. reintroduced populations of federally listed species as NEPs significantly This rule does not impose an Public Comments Solicited reduces the Act’s regulatory unfunded mandate on State, local, or We intend for any rule that is finally requirements regarding the reintroduced tribal governments or the private sector adopted to be as effective as possible. listed species. Because of the substantial of more than $100 million per year. The Therefore, we invite the public, regulatory relief, we do not believe the rule does not have a significant or concerned government agencies, the reintroduction of these fishes will unique effect on State, local or tribal scientific community, industry, and conflict with existing or proposed governments or the private sector. The other interested parties to submit human activities or hinder public use of TWRA, which manages the fishes in the comments or recommendations the Tellico River. Tellico River, requested that we concerning any aspect of this proposed This rule does not alter the budgetary consider this reintroduction under an rule (see ADDRESSES section). effects or entitlements, grants, user fees, NEP designation. However, this rule Our practice is to make comments, or loan programs, or the rights and will not require the TWRA to including names and home addresses of obligations of their recipients. Because specifically manage for any of these respondents, available for public review there are no expected impacts or reintroduced species. A statement
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containing the information required by State agency. We have endeavored to madtom catfishes in Citico Creek, Monroe the Unfunded Mandates Reform Act (2 cooperate with the TWRA in the County, Tennessee. Bull. Alabama. Mus. U.S.C. 1531 et seq.) is not required. preparation of this proposed rule. Nat. His. 18:43–69. Lennon, R.E., and P.S. Parker. 1959. The Takings (Executive Order 12630) Civil Justice Reform (Executive Order reclamation of Indian and Abrams Creeks, In accordance with Executive Order 12988) Great Smoky Mountains National Park. 12630, the rule does not have significant In accordance with Executive Order U.S. Fish and Wildlife Service Scientific Report 306. 22 pp. takings implications. When 12988, the Department of the Interior Rakes, P.L., and J.R. Shute. 1998. Results of reintroduced populations of federally has determined that this proposed rule an assay of portions of the Tellico and listed species are designated as NEPs, does not unduly burden the judicial Hiwassee Rivers for suitable habitat to the Act’s regulatory requirements system and meets the applicable support reintroductions of rare fish. regarding the reintroduced listed standards provided in sections (3)(a) January 23, 1998, unpublished report species within the NEP are significantly and (3)(b)(2) of the order. prepared by Conservation Fisheries, Inc., reduced. Section 10(j) of the Act can Knoxville, Tennessee, for U.S. Fish and Paperwork Reduction Act provide regulatory relief with regard to Wildlife Service, Asheville, North the taking of reintroduced species This rule does not require an Carolina. 14 pp. Rakes, P.L., P.W. Shute, and J.R. Shute. 1998. within a NEP area. For example, this information collection from 10 or more parties and a submission under the Captive propagation and population rule allows for the unavoidable and monitoring of rare Southeastern fishes. unintentional taking of these Paperwork Reduction Act is not Final Report for 1997. Field Season and reintroduced fishes when such take is required. Second Quarter Report for Fiscal Year incidental to a legal activity (e.g., National Environmental Policy Act 1998, prepared for Tennessee Wildlife boating, wading, and fishing) and the Resources Agency, Contract No. FA–4– activity is in accordance with State laws This rule does not constitute a major 10792–5–00. 32 pp. or regulations. Because of the Federal action significantly affecting the U.S. Fish and Wildlife Service. 1983a. quality of the human environment. A substantial regulatory relief provided by Yellowfin Madtom Recovery Plan. Atlanta, detailed statement under the National GA. 33 pp. NEP designations, we do not believe the Environmental Policy Act is not lll1983b. Spotfin Chub Recovery Plan. reintroduction of these fishes will required. We have determined that the Atlanta, GA. 46 pp. conflict with existing or proposed issuance of a proposed rule for these lll1985. Smoky Madtom Recovery Plan. human activities or hinder public use of NEPs is categorically excluded under Atlanta, GA. 28 pp. the Tellico River system. A takings lll1994. Duskytail Darter Recovery Plan. our NEPA procedures (516 DM 6, implication assessment is not required. Atlanta, GA. 25 pp. Appendix 1.4 B (6)). Federalism (Executive Order 13732) Author Clarity of This Regulation In accordance with Executive Order Executive Order 12866 requires each The principal author of this proposed 13132, the rule does not have sufficient agency to write regulations that are easy rule is Richard G. Biggins (see federalism implications to warrant the to understand. We invite your ADDRESSES section). preparation of a Federalism Assessment. comments on how to make this rule This rule will not have substantial List of Subjects in 50 CFR Part 17 easier to understand, including answers direct effects on the States, in the to questions such as the following: (1) Endangered and threatened species, relationship between the Federal Are the requirements in the rule clearly Exports, Imports, Reporting and Government and the States, or on the stated? (2) Does the rule contain recordkeeping requirements, distribution of power and technical language or jargon that Transportation. responsibilities among the various interferes with its clarity? (3) Does the levels of government. We have Proposed Regulation Promulgation format of the rule (grouping and order coordinated extensively with the State of sections, use of headings, Accordingly, we propose to amend of Tennessee on the proposed paragraphing, etc.) aid or reduce its part 17, subchapter B of chapter I, title reintroduction of fish to the Tellico clarity? (4) Would the rule be easier to 50 of the Code of Federal Regulations as River. We are undertaking this understand if it were divided into more follows: rulemaking at the request of the State (but shorter) sections? (5) Is the wildlife agency (TWRA) in order to PART 17—[AMENDED] description of the rule in the assist the State in restoring and SUPPLEMENTARY INFORMATION section of recovering its native aquatic fauna. 1. The authority citation for part 17 the preamble helpful in understanding Achieving the recovery goals for these continues to read as follows: the rule? (6) What else could we do to four fish species will contribute to the Authority: 16 U.S.C. 1361–1407; 16 U.S.C. make the rule easier to understand? eventual delisting of these species and, 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Send your comments concerning how 625, 100 Stat. 3500, unless otherwise noted. thus, the return of these species to State we could make this rule easier to management. We do not expect any understand to: Office of Regulatory 2. In § 17.11(h), revise entries in the intrusion on State policy or Affairs, Department of the Interior, table under FISHES for ‘‘Chub, spotfin’’; administration; roles or responsibilities Room 7229, 1849 C Street, NW., ‘‘Darter, duskytail’’; ‘‘Madtom, smoky’’; of Federal or State governments will not Washington, DC 20240 (e-mail: and ‘‘Madtom, yellowfin’’; to read as change; and fiscal capacity will not be [email protected]). follows: substantially directly affected. This special rule operates to maintain the Literature Cited § 17.11 Endangered and threatened wildlife. existing relationship between the States Dinkins, G.R., and P.W. Shute. 1996. Life and the Federal Government and is history of Noturus baileyi and N. * * * * * being undertaken at the request of a flavipinnis (Pisces: Ictaluridae), two rare (h) * * *
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Species Vertebrate population Historic range where endangered or Status When listed Critical Special Common name Scientific name threatened habitat rules
******* FISHES
******* Chub, spotfin Cyprinella U.S.A. (AL, GA, NC, Entire, except where list- T 28 17.95(e) 17.44(c) (=turquoise shiner). (=Hybopsis) TN, VA). ed as an experimental monacha. population. Do ...... do ...... do ...... Tellico River, from the XN ...... NA 17.84(m) backwaters of the Tellico Reservoir (about Tellico River mile 19 (30.4 km)) up- stream to Tellico River mile 33 (52.8 km), in Monroe County, TN.
******* Darter, duskytail ...... Etheostoma U.S.A. (TN, VA) ...... Entire, except where list- E 502 NA NA percnurum. ed as an experimental population. Do ...... do ...... do ...... Tellico River, from the XN ...... NA 17.84(m) backwaters of the Tellico Reservoir (about Tellico River mile 19 (30.4 km)) up- stream to Tellico River mile 33 (52.8 km), in Monroe County, TN.
******* Madtom, smoky ...... Noturus baileyi ...... U.S.A. (TN) ...... Entire, except where list- E 163 17.95(e) NA ed as an experimental population. Do ...... do ...... do ...... Tellico River, from the XN ...... NA 17.84(m) backwaters of the Tellico Reservoir (about Tellico River mile 19 (30.4 km)) up- stream to Tellico River mile 33 (52.8 km), in Monroe County, TN. Madtom, yellowfin ... Noturus flavipinnis ... U.S.A. (TN, VA) ...... Entire, except where list- T 28,317 17.95(e) 17.44(c) ed as an experimental population. Do ...... do ...... do ...... N. Fork Holston River XN 317 NA 17.84(e) Watershed, VA, TN; S. Fork Holston R., up- stream to Ft. Patrick Henry Dam, TN; Holston R. down- stream to John Sevier Detention Lake Dam, TN; and all tributaries thereto. Do ...... do ...... do ...... Tellico River, from the XN ...... NA 17.84(e) backwaters of the Tellico Reservoir (about Tellico River mile 19 (30.4 km)) up- stream to Tellico River mile 33 (52.8 km), in Monroe County, TN.
*******
3. Revise § 17.84(e) to read as follows: (e) Yellowfin madtom (Noturus (1) Where is the yellowfin madtom flavipinnis). designated as a nonessential § 17.84 Special rules—vertebrates. experimental population (NEP)? * * * * *
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(i) The North Fork Holston River applicable State fish and wildlife laws § 17.31(a) and (b) apply to the fish Watershed NEP Area is within the or regulations or the Act. identified in this paragraph. species’ historic range and is defined as (iv) You may not attempt to commit, (ii) Any manner of take not described follows: The North Fork Holston River solicit another to commit, or cause to be under paragraph (m)(3) of this section is watershed, Washington, Smyth, and committed any offense defined in this prohibited in the NEP Area. We may Scott Counties, Virginia; South Fork paragraph. refer unauthorized take of these species Holston River watershed upstream to Ft. (3) What take is allowed in the NEP to the appropriate authorities for Patrick Henry Dam, Sullivan County, Area? Take of this species that is prosecution. Tennessee; and the Holston River from accidental and incidental to an (iii) You may not possess, sell, the confluence of the North and South otherwise lawful activity, such as deliver, carry, transport, ship, import, or Forks downstream to the John Sevier fishing, boating, trapping, wading, or export by any means whatsoever any of Detention Lake Dam, Hawkins County, swimming, is allowed. the identified fish, or parts thereof, that Tennessee. This site is totally isolated (4) How will the effectiveness of these are taken or possessed in violation of from existing populations of this species reintroductions be monitored? We will this paragraph or in violation of the by large Tennessee River tributaries and prepare periodic progress reports and applicable State fish and wildlife laws reservoirs. As the species is not known fully evaluate these reintroduction or regulations or the Act. to inhabit reservoirs, and it is unlikely efforts after 5 and 10 years to determine (iv) You may not attempt to commit, that the fish could move 100 river miles whether to continue or terminate the solicit another to commit, or cause to be through these large reservoirs, the reintroduction efforts. committed any offense defined in this possibility of this population contacting * * * * * paragraph. extant wild populations is unlikely. 4. Amend § 17.84 by adding (3) What take is allowed in the NEP (ii) The Tellico River NEP Area is paragraph (m) to read as follows: Area? Take of these species that is accidental and incidental to an within the species’ historic range and is § 17.84 Special rules—vertebrates. defined as follows: The Tellico River, otherwise lawful activity, such as between the backwaters of the Tellico * * * * * fishing, boating, trapping, wading, or Reservoir (approximately Tellico River (m) Spotfin chub (=turquoise shiner) swimming, is allowed. mile (TRM) 19 (30.4 kilometers (km))) (Cyprinella (=Hybopsis) monacha), (4) How will the effectiveness of these and TRM 33 (52.8 km), near the Tellico duskytail darter (Etheostoma reintroductions be monitored? We will Ranger Station, in Monroe County, percnurum), smoky madtom (Noturus prepare periodic progress reports and Tennessee. This species is not currently baileyi). fully evaluate these reintroduction (1) Where are these fish designated as known to exist in the Tellico River or efforts after 5 and 10 years to determine nonessential experimental populations its tributaries. Based on the habitat whether to continue or terminate the (NEPs)? requirements of this species, we do not reintroduction efforts. (i) The NEP Area for the three fishes Dated: March 20, 2001. expect the fish to become established is within the species’ probable historic Joseph E. Doddridge, outside this NEP Area. However, if they ranges and is defined as follows: The do move upstream or downstream or Tellico River, from the backwaters of the Acting Assistant Secretary for Fish and Wildlife and Parks. into tributaries outside of the designated Tellico Reservoir (approximately Tellico NEP Area, we will presume that the fish River mile (TRM) 19 (30.4 kilometers [FR Doc. 01–14454 Filed 6–7–01; 8:45 am] came from the reintroduced (km))) to TRM 33 (52.8 km), near the BILLING CODE 4310–55–P populations. We will amend this rule Tellico Ranger Station, in Monroe and enlarge the boundaries of the NEP County, Tennessee. DEPARTMENT OF THE INTERIOR Area to include the entire range of the (ii) None of the fish named in this expanded population. paragraph (m) are currently known to Fish and Wildlife Service (iii) We do not intend to change the exist in the Tellico River or its NEP designations to ‘‘essential tributaries. Based on the habitat 50 CFR Part 17 experimental,’’ ‘‘threatened,’’ or requirements of these fish, we do not ‘‘endangered’’ within the NEP Areas. expect them to become established RIN 1018–AH56 Additionally, we will not designate outside the NEP Area. However, if any Endangered and Threatened Wildlife critical habitat for these NEPs, as of the species move upstream or and Plants; Proposed Rule To Remove provided by 16 U.S.C. 1539(j)(2)(C)(ii). downstream or into tributaries outside Potentilla robbinsiana (Robbins’ (2) What activities are not allowed in of the designated NEP Area, we will cinquefoil) From the Endangered and the NEP Area? presume that the fish came from the Threatened Plant List (i) Except as expressly allowed in this reintroduced populations. We will paragraph (e), all the prohibitions of amend this paragraph and enlarge the AGENCY: Fish and Wildlife Service, § 17.31(a) and (b) apply to the fish boundaries of the NEP Area to include Interior. identified in this paragraph. the entire range of the expanded ACTION: Proposed rule. (ii) Any manner of take not described population. under paragraph (e)(3) of this section is (iii) We do not intend to change the SUMMARY: We, the U.S. Fish and prohibited in the NEP Area. We may NEP designations to ‘‘essential Wildlife Service (Service), propose to refer unauthorized take of these species experimental,’’ ‘‘threatened,’’ or remove Potentilla robbinsiana, to the appropriate authorities for ‘‘endangered’’ within the NEP Area. commonly called Robbins’ cinquefoil, prosecution. Additionally, we will not designate from the List of Endangered and (iii) You may not possess, sell, critical habitat for these NEPs, as Threatened Plants. We propose this deliver, carry, transport, ship, import, or provided by 16 U.S.C. 1539(j)(2)(C)(ii). action because the available data export by any means whatsoever any of (2) What activities are not allowed in indicate that this species has met the the identified fish, or parts thereof, that the NEP Area? goals for delisting. The main population are taken or possessed in violation of (i) Except as expressly allowed in this of the species currently has more than this paragraph or in violation of the paragraph, all the prohibitions of 14,000 plants, and the 2 transplant
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