[Federal Register Volume 69, Number 203 (Thursday, October 21, 2004)]
[Proposed Rules]
[Pages 61774-61784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23587]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH44


Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population for Two Fishes (Boulder Darter and 
Spotfin Chub) in Shoal Creek, Tennessee and Alabama

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), in 
cooperation with the States of Tennessee and Alabama and with 
Conservation Fisheries, Inc., a nonprofit organization, propose to 
reintroduce one federally listed endangered fish, the boulder darter 
(Etheostoma wapiti), and one federally listed threatened fish, the 
spotfin chub (Cyprinella (=Hybopsis) monacha), into their historical 
habitat in Shoal Creek, Lauderdale County, Alabama, and Lawrence 
County, Tennessee. Based on the evaluation of species' experts, these 
species currently do not exist in this reach or its tributaries. These 
two fish are being reintroduced under section 10(j) of the Endangered 
Species Act of 1973, as amended (Act), and would be classified as a 
nonessential experimental population (NEP).
    The geographic boundaries of the proposed NEP would extend from the 
mouth of Long Branch, Lawrence County, Tennessee (Shoal Creek mile (CM) 
41.7 (66.7 kilometers (km)), downstream to the backwaters of the Wilson 
Reservoir at Goose Shoals, Lauderdale County, Alabama (approximately CM 
14 (22 km)), and would include the lower 5 CM (8 km) of all tributaries 
that enter this reach.
    These proposed reintroductions are recovery actions and are part of 
a series of reintroductions and other recovery actions that the 
Service, Federal and State agencies, and other partners are conducting 
throughout the species' historical ranges. This proposed rule provides 
a plan for establishing the NEP and provides for limited allowable 
legal taking of the boulder darter and spotfin chub within the defined 
NEP area.

DATES: We will consider comments on this proposed rule that are 
received by December 20, 2004. Requests for a public hearing must be 
made in writing and received by December 6, 2004.

ADDRESSES: You may submit comments and other information, identified by 
RIN 1018-AH44, by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Mail or Hand Delivery: Field Supervisor, U.S. Fish and 
Wildlife Service, Tennessee Field Office, 446 Neal Street, Cookeville, 
Tennessee, 38501.
    <bullet> Fax: (931) 528-7075.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#e99d8084869d8190b6848c9b9b809d9da98f9e9ac78e869f"><span class="__cf_email__" data-cfemail="14607d797b607c6d4b797166667d6060547263673a737b62">[email protected]</span></a>. Include ``Attn: Shoal 
Creek NEP'' in the subject line of the message.
    Instructions: All submissions received must include the agency name 
and Regulatory Information Number (RIN) for this rulemaking. Please 
include your name and return address in the body of your message. 
Please see the Public Comments Solicited section below for file format 
and other information about electronic filing. In the event that our 
internet connection is not functional, please contact the Service by 
the alternative methods mentioned above.
    The comments and materials we receive during the comment period 
will be available for public inspection, by appointment, during normal 
business hours at our Tennessee Field Office: U.S. Fish and Wildlife 
Service, 446 Neal Street, Cookeville, Tennessee, 38501. If you wish to 
request a public hearing, you may mail or hand deliver your written 
request to the above address.

FOR FURTHER INFORMATION CONTACT: Timothy Merritt, U.S. Fish and 
Wildlife Service, 446 Neal Street, Cookeville, Tennessee 28801, 
telephone (931) 528-6481, Ext. 211, facsimile (931) 528-7075, or e-mail 
at <a href="/cdn-cgi/l/email-protection#e195888c8e958998be8c849393889595a1879692cf868e97"><span class="__cf_email__" data-cfemail="8cf8e5e1e3f8e4f5d3e1e9fefee5f8f8cceafbffa2ebe3fa">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

1. Legislative

    Congress made significant changes to the Act in 1982 with the 
addition of section 10(j), which provides for the designation of 
specific reintroduced populations of listed species as ``experimental 
populations.'' Previously, we had authority to reintroduce populations 
into unoccupied portions of a listed species' historical range when 
doing so would foster the species' conservation and recovery. However, 
local citizens often opposed these reintroductions because they were 
concerned about the placement of restrictions and prohibitions on 
Federal and private activities. Under section 10(j) of the Act, the 
Secretary of the Department of the Interior can designate reintroduced 
populations established outside the species' current range, but within 
its historical range, as ``experimental.'' Based on the best scientific 
and commercial data available, we must determine whether experimental 
populations are ``essential,'' or ``nonessential,'' to the continued 
existence of the species. Regulatory restrictions are considerably 
reduced under a Nonessential Experimental Population (NEP) designation.
    Without the ``nonessential experimental population'' designation, 
the Act provides that species listed as endangered or threatened are 
afforded protection primarily through the prohibitions of section 9 and 
the requirements of section 7. Section 9 of the Act prohibits the take 
of an endangered species. ``Take'' is defined by the Act as harass, 
harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt 
to engage in any such conduct. Service regulations (50 CFR 17.31) 
generally extend the prohibitions of take to threatened wildlife. 
Section 7 of the Act outlines the procedures for

[[Page 61775]]

Federal interagency cooperation to conserve federally listed species 
and protect designated critical habitat. It mandates all Federal 
agencies to determine how to use their existing authorities to further 
the purposes of the Act to aid in recovering listed species. It also 
states that Federal agencies will, in consultation with the Service, 
ensure that any action they authorize, fund, or carry out is not likely 
to jeopardize the continued existence of a listed species or result in 
the destruction or adverse modification of designated critical habitat. 
Section 7 of the Act does not affect activities undertaken on private 
land unless they are authorized, funded, or carried out by a Federal 
agency.
    For purposes of section 9 of the Act, a population designated as 
experimental is treated as threatened regardless of the species' 
designation elsewhere in its range. Through section 4(d) of the Act, 
threatened designation allows us greater discretion in devising 
management programs and special regulations for such a population. 
Section 4(d) of the Act allows us to adopt whatever regulations are 
necessary to provide for the conservation of a threatened species. In 
these situations, the general regulations that extend most section 9 
prohibitions to threatened species do not apply to that species, and 
the special 4(d) rule contains the prohibitions and exemptions 
necessary and appropriate to conserve that species. Regulations issued 
under section 4(d) for NEPs are usually more compatible with routine 
human activities in the reintroduction area.
    For the purposes of section 7 of the Act, we treat NEPs as a 
threatened species when the NEP is located within a National Wildlife 
Refuge or National Park, and section 7(a)(1) and the consultation 
requirements of section 7(a)(2) of the Act apply. Section 7(a)(1) 
requires all Federal agencies to use their authorities to conserve 
listed species. Section 7(a)(2) requires that Federal agencies, in 
consultation with the Service, insure that any action authorized, 
funded, or carried out is not likely to jeopardize the continued 
existence of a listed species or adversely modify its critical habitat. 
When NEPs are located outside a National Wildlife Refuge or National 
Park, we treat the population as proposed for listing and only two 
provisions of section 7 would apply--section 7(a)(1) and section 
7(a)(4). In these instances, NEPs provide additional flexibility 
because Federal agencies are not required to consult with us under 
section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer 
(rather than consult) with the Service on actions that are likely to 
jeopardize the continued existence of a species proposed to be listed. 
The results of a conference are advisory in nature and do not restrict 
agencies from carrying out, funding, or authorizing activities.
    Individuals that are used to establish an experimental population 
may come from a donor population, provided their removal will not 
create adverse impacts upon the parent population, and provided 
appropriate permits are issued in accordance with our regulations (50 
CFR 17.22) prior to their removal. In the case of the boulder darter 
and spotfin chub, the donor population is a captive-bred population, 
which was propagated with the intention of re-establishing wild 
populations to achieve recovery goals. In addition, it is possible that 
wild adult stock could also be released into the NEP area.

2. Biological Information

    The endangered boulder darter is an olive to gray colored fish that 
lacks the red spots common to most darters. It is a small fish, 
approximately 76 millimeters (mm) (3 inches (in)) in length. Although 
boulder darters were historically recorded only in the Elk River system 
and Shoal Creek, scientists believe, based on the historical 
availability of suitable habitat, that this darter once inhabited fast-
water rocky habitat in the Tennessee River and its larger tributaries 
in Tennessee and Alabama, from the Paint Rock River in Madison County, 
Alabama, downstream to at least Shoal Creek in Lauderdale County, 
Alabama (U.S. Fish and Wildlife Service 1989). Currently, it is 
extirpated from Shoal Creek and exists only in the Elk River, Giles and 
Lincoln Counties, Tennessee, and Limestone County, Alabama, and the 
lower reaches of Richland Creek, an Elk River tributary, Giles County, 
Tennessee (U.S. Fish and Wildlife Service 1989).
    The spotfin chub is also olive colored, but with sides that are 
largely silvery and with white lower parts. Large nuptial males have 
brilliant turquoise-royal blue coloring on the back, side of the head, 
and along the mid-lateral part of the body. It is also a small fish, 
approximately 92 millimeters (mm) (4 inches (in)) in length. The 
spotfin chub was once a widespread species and was historically known 
from 24 upper and middle Tennessee River system streams, including 
Shoal Creek. It is now extant in only four rivers/river systems--the 
Buffalo River at the mouth of Grinders Creek, Lewis County, Tennessee; 
the Little Tennessee River, Swain and Macon Counties, North Carolina; 
Emory River system (Obed River, Clear Creek, and Daddys Creek), 
Cumberland and Morgan Counties, Tennessee; the Holston River and its 
tributary, North Fork Holston River, Hawkins and Sullivan Counties, 
Tennessee, and Scott and Washington Counties, Virginia (U.S. Fish and 
Wildlife Service 1983; P. Shute, TVA, pers. comm. 1998).
    Since the mid-1980s, Conservation Fisheries, Inc. (CFI), a 
nonprofit organization, with support from us, the Tennessee Wildlife 
Resources Agency (TWRA), U.S. Forest Service, National Park Service, 
Tennessee Valley Authority (TVA), and Tennessee Aquarium, has 
successfully translocated, propagated, and reintroduced the spotfin 
chub and three other federally listed fishes (smoky madtoms, yellowfin 
madtoms, and duskytail darters) into Abrams Creek, Great Smoky 
Mountains National Park, Blount County, Tennessee. These fish 
historically occupied Abrams Creek prior to an ichthyocide treatment in 
the 1950s. An NEP designation for Abrams Creek was not needed since the 
entire watershed occurs on National Park Service land, section 7 of the 
Act applies regardless of the NEP designation, and existing human 
activities and public use of the Creek are consistent with protection 
and take restrictions needed for the reintroduced populations. Natural 
reproduction by all four species in Abrams Creek has been documented, 
but the spotfin chub appears to be the least successful in this 
capacity (Rakes et al. 2001; Rakes and Shute 2002). We have also worked 
with CFI to translocate, propagate, and reintroduce these same four 
fish into an NEP established for a section of the Tellico River, Monroe 
County, Tennessee (67 FR 52420, August 12, 2002). Propagated fish of 
these four species were released into the Tellico River starting in 
2003. It is still too early to determine the success of these releases, 
but it is believed that the habitat and water quality is sufficient to 
ensure future success similar to the Abrams Creek reintroductions. CFI 
has also successfully propagated boulder darters and augmented the only 
known population of the species in the Elk River system in Tennessee.
    Based on CFI's success and intimate knowledge of these two fishes 
and their habitat needs, we contracted with CFI to survey Shoal Creek 
in order to determine if suitable habitat exists in this creek for 
reintroductions, and if we could expand our ongoing fish recovery 
efforts to these waters (Rakes and Shute 1999). Rakes and Shute (1999) 
concluded that about 20 miles (32 km) of Shoal Creek above the 
backwaters of the Wilson Reservoir appeared to contain suitable 
reintroduction habitat

[[Page 61776]]

for both fishes. The boulder darter and spotfin chub were last 
collected from Shoal Creek in the 1880s, and since then both were 
apparently extirpated from this reach. We believe the boulder darter 
was extirpated by the combined effects of water pollution and the 
impoundment of lower Shoal Creek with the construction of Wilson Dam 
(U.S. Fish and Wildlife Service 1989). We believe that similar factors 
led to the extirpation of the spotfin chub for similar reasons. 
However, as a result of implementation of the Clean Water Act by the 
U.S. Environmental Protection Agency (EPA) and State water and natural 
resources agencies, and the pollution control measures undertaken by 
municipalities, industries, and individuals, the creek's water quality 
has greatly improved and its resident fish fauna has responded 
positively (Charles Saylor, TVA, pers. comm. 2002; based on his 
bioassays).

3. Recovery Goals/Objectives

    The boulder darter (Etheostoma wapiti) (Etnier and Williams 1989) 
was listed as an endangered species on September 1, 1988 (53 FR 33996). 
We completed a recovery plan for this species in July 1989 (U.S. Fish 
and Wildlife Service 1989). The downlisting (reclassification from 
endangered to threatened) objectives in the recovery plan are: (1) To 
protect and enhance the existing population in the Elk River and its 
tributaries, and to successfully establish a reintroduced population in 
Shoal Creek or other historical habitat or discover an additional 
population so that at least two viable populations exist; and (2) to 
complete studies of the species' biological and ecological requirements 
and implement management strategies developed from these studies that 
have been or are likely to be successful. The delisting objectives are: 
(1) to protect and enhance the existing population in the Elk River and 
its tributaries, and to successfully establish reintroduced populations 
or discover additional populations so that at least three viable 
populations exist (the Elk River population including the tributaries 
must be secure from river mile (RM) 90 downstream to RM 30); (2) to 
complete studies of the species' biological and ecological requirements 
and implement successful management strategies; and (3) to ensure that 
no foreseeable threats exist that would likely impact the survival of 
any populations.
    The spotfin chub (=turquoise shiner) (Cyprinella (=Hybopsis) 
monacha) (Cope 1868) was listed as a threatened species on September 9, 
1977, with critical habitat and a special rule (42 FR 45526). The 
critical habitat map was corrected on September 22, 1977 (42 FR 47840). 
We completed a recovery plan for this species in November 1983 (U.S. 
Fish and Wildlife Service 1983). We also established an NEP for the 
spotfin chub and three other federally listed fishes for a section of 
the Tellico River in Monroe County, Tennessee, on August 12, 2002 (67 
FR 52420). The delisting objectives in the recovery plan are: (1) To 
protect and enhance existing populations so that viable populations 
exist in the Buffalo River system, upper Little Tennessee River, Emory 
River system, and lower North Fork Holston River; (2) to ensure, 
through reintroduction and/or the discovery of two new populations, 
that viable populations exist in two other rivers; and (3) to ensure 
that no present or foreseeable threats exist that would likely impact 
the survival of any populations.
    The recovery criteria for both fishes generally agree that, to 
reach recovery, we must: (1) Restore existing populations to viable 
levels, (2) reestablish multiple, viable populations in historical 
habitats, and (3) eliminate foreseeable threats that would likely 
threaten the continued existence of any viable populations. The number 
of secure, viable populations (existing and restored) needed to achieve 
recovery varies by species and depends on the extent of the species' 
probable historical range (i.e., species that were once widespread 
require a greater number of populations for recovery than species that 
were historically more restricted in distribution). However, the 
reestablishment of historical populations is a critical component to 
the recovery of both the boulder darter and spotfin chub.

4. Reintroduction Site

    In May 1999 letters to us, the Commissioner of the Alabama 
Department of Conservation and Natural Resources (ADCNR) and the 
Executive Director of the TWRA requested that we consider designating 
NEPs for the spotfin chub and boulder darter and reintroducing both 
species into Shoal Creek, where they historically occurred.
    We previously established NEPs for the spotfin chub and three other 
federally listed fishes in the Tellico River, Tennessee, on August 12, 
2002 (67 FR 52420). Reintroductions of the spotfin chub were initiated 
in the Tellico River in 2002 and were continued in 2003 along with the 
first reintroductions of the remaining three fish species. These 
reintroduced fish are being monitored. We believe the Tellico River is 
suitable for the establishment of viable populations of each of these 
four fish and anticipate success as this recovery project proceeds. 
Establishment of viable populations of the spotfin chub in both the 
Tellico River under the existing regulation and in Shoal Creek if this 
proposed regulation is finalized will help achieve an objective in the 
recovery of this fish. However, it will take several years of 
monitoring to fully evaluate if populations of this fish (and the other 
fishes) have become established and remain viable in these historic 
river reaches.
    Based on the presence of suitable habitat, the positive response of 
native fish species to habitat improvements in Shoal Creek, the 
presence of similar fish species that have similar habitat requirements 
to both of these fishes, the recommendations mentioned above, and the 
evaluation of biologists familiar with Shoal Creek, we believe that 
Shoal Creek, from the mouth of Long Branch to the backwaters of the 
Wilson Reservoir, is suitable for the reintroduction of the boulder 
darter and spotfin chub as NEPs.
    According to P. Rakes (CFI, pers. comm. 1999), the best sites to 
reintroduce these fishes into Shoal Creek are between CM 33 (53 km) and 
CM 14 (22 km). Therefore, we propose to reintroduce the boulder darter 
and spotfin chub into historical habitat of the free-flowing reach of 
Shoal Creek between CM 33 and CM 14. This reach contains the most 
suitable habitat for the reintroductions. Neither species currently 
exists in Shoal Creek or its tributaries.

5. Reintroduction Procedures

    The dates for these proposed reintroductions, the specific release 
sites, and the actual number of individuals to be released cannot be 
determined at this time. Individual fish that would be used for the 
proposed reintroductions primarily will be artificially propagated 
juveniles. However, it is possible that wild adult stock could also be 
released into the NEP area. Spotfin chub and boulder darter propagation 
and juvenile rearing technology are available. The parental stock of 
the juvenile fishes for proposed reintroduction will come from existing 
wild populations. In some cases, the parental stock for juvenile fish 
will be returned back to the same wild population. Generally, the 
parents are permanently held in captivity.
    The permanent removal of adults from the wild for their use in 
reintroduction efforts may occur when one or more of the following 
conditions exist: (1) Sufficient adult fish are

[[Page 61777]]

available within a donor population to sustain the loss without 
jeopardizing the species; (2) the species must be removed from an area 
because of an imminent threat that is likely to eliminate the 
population or specific individuals present in an area; or (3) when the 
population is not reproducing. It is most likely that adults will be 
permanently removed because of the first condition: sufficient adult 
fish are available within a donor population to sustain the loss 
without jeopardizing the species. An enhancement of propagation or 
survival permit under section 10(a)(1)(A) of the Act is required. The 
permit will be issued before any take occurs, and we will coordinate 
these actions with the appropriate State natural resources agencies.

6. Status of Reintroduced Population

    Previous translocations, propagations, and reintroductions of 
spotfin chubs and boulder darters have not affected the wild 
populations of either species. The use of artificially propagated 
juveniles will reduce the potential effects on wild populations. The 
status of the extant populations of the boulder darter and spotfin chub 
is such that individuals can be removed to provide a donor source for 
reintroduction without creating adverse impacts upon the parent 
population. If any of the reintroduced populations become established 
and are subsequently lost, the likelihood of the species' survival in 
the wild would not be appreciably reduced. Therefore, we have 
determined that these reintroduced fish populations in Shoal Creek are 
not essential to the continued existence of the species. We will 
ensure, through our section 10 permitting authority and the section 7 
consultation process, that the use of animals from any donor population 
for these reintroductions is not likely to jeopardize the continued 
existence of the species.
    Reintroductions are necessary to further the recovery of these 
species. The NEP designation for the reintroduction alleviates 
landowner concerns about possible land and water use restrictions by 
providing a flexible management framework for protecting and recovering 
the boulder darter and spotfin chub, while ensuring that the daily 
activities of landowners are unaffected. In addition, the anticipated 
success of these reintroductions will enhance the conservation and 
recovery potential of these species by extending their present ranges 
into currently unoccupied historical habitat. These species are not 
known to exist in Shoal Creek or its tributaries at the present time.

7. Location of Reintroduced Population

    The NEP area, which encompasses all the sites for the proposed 
reintroductions, will be located in the free-flowing reach of Shoal 
Creek, Lauderdale County, Alabama, and Lawrence County, Tennessee, from 
the mouth of Long Branch downstream to the backwaters of the Wilson 
Reservoir. Section 10(j) of the Act requires that an experimental 
population be geographically separate from other wild populations of 
the same species. This proposed NEP area is totally isolated from 
existing populations of these species by large reservoirs, and neither 
fish species is known to occur in or move through large reservoirs. 
Therefore, the reservoirs will act as barriers to the species' 
downstream movement into the Tennessee River and its tributaries and 
ensure that this NEP remains geographically isolated and easily 
distinguishable from existing wild populations. Based on the fishes' 
habitat requirements, we do not expect them to become established 
outside the NEP. However, if any of the reintroduced boulder darters 
and spotfin chubs move outside the designated NEP area, then the fish 
would be considered to have come from the NEP area. In that case, we 
may propose to amend the rule and enlarge the boundaries of the NEP 
area to include the entire range of the expanded populations.
    The designated NEP area for the spotfin chub in the Tellico River 
(67 FR 52420) does not overlap or interfere with this proposed NEP area 
for Shoal Creek in Tennessee and Alabama because they are 
geographically separated river reaches.
    Critical habitat has been designed for the spotfin chub (42 FR 
47840, September 22, 1977); however, the designation does not include 
the proposed NEP area. Critical habitat has not been designated for the 
boulder darter. Section 10(j)(2)(C)(ii) of the Act states that critical 
habitat shall not be designated for any experimental population that is 
determined to be nonessential. Accordingly, we cannot designate 
critical habitat in areas where we have already established, by 
regulation, a nonessential experimental population.

8. Management

    The aquatic resources in the proposed reintroduction area are 
managed by the ADCNR and TWRA. Multiple-use management of these waters 
will not change as a result of the experimental designation. Private 
landowners within the NEP area will still be allowed to continue all 
legal agricultural and recreational activities. Because of the 
substantial regulatory relief provided by NEP designations, we do not 
believe the reintroduction of boulder darter and spotfin chub will 
conflict with existing human activities or hinder public use of the 
area. The ADCNR and the TWRA have previously endorsed the boulder 
darter and spotfin chub reintroductions under NEP designations and are 
supportive of this effort. The NEP designation will not require the 
ADCNR and the TWRA to specifically manage for reintroduced boulder 
darter and spotfin chub.
    The Service, State employees, and CFI, Inc., staff will manage the 
reintroduction. They will closely coordinate on reintroductions, 
monitoring, coordination with landowners and land managers, and public 
awareness, among other tasks necessary to ensure successful 
reintroductions of species.
    (a) Mortality: The Act defines ``incidental take'' as take that is 
incidental to, and not the purpose of, the carrying out of an otherwise 
lawful activity such as recreation (e.g., fishing, boating, wading, 
trapping or swimming), forestry, agriculture, and other activities that 
are in accordance with Federal, Tribal, State, and local laws and 
regulations. A person may take a boulder darter or spotfin chub within 
the experimental population area provided that the take is 
unintentional and was not due to negligent conduct. Such conduct will 
not constitute ``knowing take,'' and we will not pursue legal action. 
However, when we have evidence of knowing (i.e., intentional) take of a 
boulder darter or spotfin chub, we will refer matters to the 
appropriate authorities for prosecution. We expect levels of incidental 
take to be low since the reintroduction is compatible with existing 
human use activities and practices for the area.
    (b) Special Handling: Service employees and authorized agents 
acting on their behalf may handle boulder darter and spotfin chub for 
scientific purposes; to relocate boulder darter and spotfin chub to 
avoid conflict with human activities; for recovery purposes; to 
relocate boulder darter and spotfin chub to other reintroduction sites; 
to aid sick or injured boulder darter and spotfin chub; and to salvage 
dead boulder darter and spotfin chub.
    (c) Coordination with landowners and land managers: The Service and 
cooperators identified issues and concerns associated with the proposed 
boulder darter and spotfin chub reintroduction before preparing this 
proposed rule. The proposed

[[Page 61778]]

reintroduction also has been discussed with potentially affected State 
agencies, businesses, and landowners within the proposed release area. 
The land along the proposed NEP site is privately owned. International 
Paper owns a large tract within the proposed NEP area and has expressed 
a strong interest in working with us to establish these fish in their 
stretch of the creek. Most, if not all, of the identified businesses 
are small businesses engaged in activities along the affected reaches 
of this creek. Affected State agencies, businesses, landowners, and 
land managers have indicated support for the reintroduction, if boulder 
darter and spotfin chub released in the proposed experimental 
population area are established as an NEP and if aquatic resource 
activities in the proposed experimental population area are not 
constrained.
    (d) Potential for conflict with human activities: We do not believe 
these proposed reintroductions will conflict with existing or proposed 
human activities or hinder public use of the NEP area within Shoal 
Creek. Experimental population special rules contain all the 
prohibitions and exceptions regarding the taking of individual animals. 
These special rules are compatible with routine human activities in the 
reintroduction area.
    (e) Monitoring: After the first initial stocking of these two fish, 
we will monitor annually their presence or absence and document any 
spawning behavior or young-of-the-year fish that might be present. This 
monitoring will be conducted primarily by snorkeling or seining and 
will be accomplished by contracting with the appropriate species 
experts. Annual reports will be produced detailing the stocking rates 
and monitoring activities that took place during the previous year. We 
will also fully evaluate these reintroduction efforts after 5 and 10 
years to determine whether to continue or terminate the reintroduction 
efforts.
    (f) Public awareness and cooperation: On August 26, 1999, we mailed 
letters to 80 potentially affected congressional offices, Federal and 
State agencies, local governments, and interested parties to notify 
them that we were considering proposing NEP status in Shoal Creek for 
two fish species. We received a total of four responses, all of which 
supported our proposed designation and reintroductions.
    The EPA supported the proposal, commended the ADCNR, TWRA, and us 
for the proposal and its projected beneficial results, and stated that 
the reintroductions would assist them in meeting one of the goals of 
the Clean Water Act--restoring the biological integrity of the Nation's 
water.
    The TVA strongly supported the concept of reintroducing extirpated 
species, but also cautioned that past industrial discharges into Shoal 
Creek could potentially limit or prevent the survival of sensitive 
fishes in the creek.
    The Tennessee Department of Environment and Conservation applauded 
our (TWRA, CFI, and us) efforts to restore Shoal Creek fishes. They 
also supported the proposed reintroductions under NEP status, because 
the designation will ensure that current human uses of Shoal Creek are 
given due consideration in recovery efforts for the species.
    Dr. David Etnier, Department of Ecology and Evolutionary Biology, 
University of Tennessee, Knoxville, Tennessee, supported the 
reintroductions and concluded that he saw no compelling reason to delay 
them.
    We will inform the general public of the importance of this 
reintroduction project in the overall recovery of the boulder darter 
and spotfin chub. The designation of the NEP for Shoal Creek and 
adjacent areas would provide greater flexibility in the management of 
the reintroduced boulder darter and spotfin chub. The NEP designation 
is necessary to secure needed cooperation of the States, Tribes, 
landowners, agencies, and other interests in the affected area.

Finding

    Based on the above information, and using the best scientific and 
commercial data available (in accordance with 50 CFR 17.81), the 
Service finds that releasing the boulder darter and spotfin chub into 
the Shoal Creek Experimental Population Area under a Nonessential 
Experimental Population designation will further the conservation of 
the species.

Other Changes to the Regulations

    The spotfin chub was listed with critical habitat and a special 
rule on September 9, 1977, under the scientific name of Hybopsis 
monacha. The current list of endangered and threatened species at 50 
CFR 17.11(h), the existing experimental population on the Tellico River 
in Tennessee at 50 CFR 17.84(m), and the critical habitat designation 
at 50 CFR 17.95(e) all use the scientific name Cyprinella (=Hybopsis) 
monacha for the spotfin chub. However, the special rule at 50 CFR 
17.44(c) uses the scientific name Hybopsis monacha for the spotfin 
chub. We are proposing to correct the text for the special rule at 50 
CFR 17.44(c) by changing the scientific name for the spotfin chub from 
Hybopsis monacha to Cyprinella (=Hybopsis) monacha to make this section 
consistent with the text of the existing regulations for the spotfin 
chub.
    Also, unlike many of the existing experimental population 
regulations at 50 CFR 17.84, the entry for the experimental population 
for the Tellico River in Tennessee at 50 CFR 17.84(m) does not include 
a map. We are proposing to add a map for this entry to make this 
section consistent with the text of the existing regulations for 
experimental populations (see Proposed Regulation Promulgation section 
below).

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
parties concerning this proposed rule. If you wish to comment on this 
proposed rule, you may submit your comments and materials concerning 
this proposal by any one of several methods (see ADDRESSES).
    Comments submitted electronically should be in the body of the e-
mail message itself or attached as a text file (ASCII), and should not 
use special characters or encryption. Please also include ``Attn: Shoal 
Creek NEP,'' your full name, and your return address in your e-mail 
message. Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Respondents may request that we withhold their home 
address, which we will honor to the extent allowable by law. There also 
may be circumstances in which we would withhold a respondent's 
identity, as allowable by law. If you wish for us to withhold your name 
and/or address, you must state this request prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. To the extent consistent with applicable law, we will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the 
Ecological Services Office in Cookeville, Tennessee (see ADDRESSES). 
Copies of the proposed rule are available on the Internet at http://cookeville.fws.gov.

[[Page 61779]]

Peer Review

    In conformance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we will seek the expert opinions of at least three 
appropriate and independent specialists regarding this proposed rule. 
The purpose of such review is to ensure that our NEP designation is 
based on scientifically sound data, assumptions, and analyses. We will 
send copies of this proposed rule to these peer reviewers immediately 
following publication in the Federal Register. We will invite these 
peer reviewers to comment, during the public comment period, on the 
specific assumptions and conclusions regarding the proposed NEP.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    You may request a public hearing on this proposal. Requests must be 
made in writing at least 15 days prior to the close of the public 
comment period and sent to the Field Supervisor for the U.S. Fish and 
Wildlife Service in Tennessee (see ADDRESSES and DATES sections).

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    In accordance with the criteria in Executive Order 12866, this 
proposed rule to designate NEP status for the boulder darter and 
spotfin chub in Shoal Creek, Lauderdale County, Alabama and Lawrence 
County, Tennessee, is not a significant regulatory action subject to 
Office of Management and Budget review. This rule will not have an 
annual economic effect of $100 million or more on the economy and will 
not have an adverse effect on any economic sector, productivity, 
competition, jobs, the environment, or other units of government. The 
area affected by this rule consists of a very limited and discrete 
geographic segment of lower Shoal Creek (about 28 CM (44 km)) in 
southwestern Tennessee and northern Alabama. Therefore, a cost-benefit 
and economic analysis will not be required.
    We do not expect this rule to have significant impacts to existing 
human activities (e.g., agricultural activities, forestry, fishing, 
boating, wading, swimming, trapping) in the watershed. The 
reintroduction of these federally listed species, which will be 
accomplished under NEP status with its associated regulatory relief, is 
not expected to impact Federal agency actions. Because of the 
substantial regulatory relief, we do not believe the proposed 
reintroduction of these species will conflict with existing or proposed 
human activities or hinder public use of Shoal Creek or its 
tributaries.
    This rule will not create inconsistencies with other agencies' 
actions or otherwise interfere with an action taken or planned by 
another agency. Federal agencies most interested in this rulemaking are 
primarily the EPA and TVA. Both Federal agencies support the proposal. 
Because of the substantial regulatory relief provided by the NEP 
designation, we believe the reintroduction of the boulder darter and 
spotfin chub in the areas described will not conflict with existing 
human activities or hinder public utilization of the area.
    This rule will not materially affect entitlements, grants, user 
fees, or loan programs, or the rights and obligations of their 
recipients. Because there are no expected impacts or restrictions to 
existing human uses of Shoal Creek as a result of this rule, no 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients are expected to occur.
    This rule does not raise novel legal or policy issues. Since 1984, 
we have promulgated section 10(j) rules for many other species in 
various localities. Such rules are designed to reduce the regulatory 
burden that would otherwise exist when reintroducing listed species to 
the wild.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Although most of the identified entities are small businesses engaged 
in activities along the affected reaches of this creek, this rulemaking 
is not expected to have any significant impact on private activities in 
the affected area. The designation of an NEP in this rule will 
significantly reduce the regulatory requirements regarding the 
reintroduction of these species, will not create inconsistencies with 
other agencies' actions, and will not conflict with existing or 
proposed human activity, or Federal, State, or public use of the land 
or aquatic resources.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule will not have 
an annual effect on the economy of $100 million or more. It will not 
cause a major increase in costs or prices for consumers; individual 
industries; Federal, State, or local government agencies; or geographic 
regions. This rule does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of United States-based enterprises to compete with foreign-
based enterprises. The intent of this special rule is to facilitate and 
continue the existing commercial activity while providing for the 
conservation of the species through reintroduction into suitable 
habitat.

Unfunded Mandates Reform Act

    The proposed NEP designation will not place any additional 
requirements on any city, county, or other local municipality. The 
ADCNR and TWRA, which manages Shoal Creek's aquatic resources, 
requested that we consider these proposed reintroductions under an NEP 
designation. However, they will not be required to manage for any 
reintroduced species. Accordingly, this proposed rule will not 
``significantly or uniquely'' affect small governments. A Small 
Government Agency Plan is not required since this rulemaking does not 
require any action to be taken by local or State governments or private 
entities. We have determined and certify pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1501 et seq., that this rulemaking will 
not impose a cost of $100 million or more in any given year on local or 
State governments or private entities (i.e., it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.).

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. When reintroduced populations of 
federally listed species are designated as NEPs, the Act's regulatory 
requirements regarding the reintroduced listed species within the NEP 
are significantly reduced. Section 10(j) of the Act can provide 
regulatory relief with regard to the taking of reintroduced species 
within an NEP area. For example, this rule allows for the taking of 
these reintroduced fishes when such take is incidental to an otherwise 
legal activity, such as recreation (e.g., fishing, boating, wading, 
trapping, swimming), forestry, agriculture, and other activities that 
are in accordance with Federal, State, and local laws and regulations. 
Because of the substantial regulatory relief provided by NEP 
designations, we do not believe the reintroduction of these

[[Page 61780]]

fishes will conflict with existing or proposed human activities or 
hinder public use of the Shoal Creek system.
    A takings implication assessment is not required because this rule 
(1) will not effectively compel a property owner to suffer a physical 
invasion of property and (2) will not deny all economically beneficial 
or productive use of the land or aquatic resources. This rule will 
substantially advance a legitimate government interest (conservation 
and recovery of two listed fish species) and will not present a barrier 
to all reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects to warrant the preparation of a 
Federalism Assessment. This rule will not have substantial direct 
effects on the States, in the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. The State 
wildlife agencies in Alabama (ADCNR) and Tennessee (TWRA) requested 
that we undertake this rulemaking in order to assist the States in 
restoring and recovering their native aquatic fauna. Achieving the 
recovery goals for these species will contribute to their eventual 
delisting and their return to State management. No intrusion on State 
policy or administration is expected; roles or responsibilities of 
Federal or State governments will not change; and fiscal capacity will 
not be substantially directly affected. The special rule operates to 
maintain the existing relationship between the States and the Federal 
Government and is being undertaken at the request of State agencies 
(ADCNR and TWRA). We have cooperated with the ADCNR and TWRA in the 
preparation of this proposed rule. Therefore, this rule does not have 
significant Federalism effects or implications to warrant the 
preparation of a Federalism Assessment pursuant to the provisions of 
Executive Order 13132.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this proposed rule does not unduly burden 
the judicial system and that it meets the requirements of sections 
(3)(a) and (3)(b)(2) of the Order.

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR 1320, 
which implement provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.) require that Federal agencies obtain approval from OMB 
before collecting information from the public. An agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information, unless it displays a currently valid control 
number. This proposed rule does not include any new collections of 
information that require approval by OMB under the Paperwork Reduction 
Act.

National Environmental Policy Act

    We have determined that the issuance of this proposed rule is 
categorically excluded under our National Environmental Policy Act 
procedures (516 DM 6, Appendix 1.4 B (6)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 229511), Executive Order 13175, and the Department 
of the Interior Manual Chapter 512 DM 2, we have evaluated possible 
effects on federally recognized Indian tribes and have determined that 
there are no effects.

Energy Supply, Distribution or Use (E.O. 13211)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is not 
expected to significantly affect energy supplies, distribution, and 
use. Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

Clarity of This Regulation (E.O. 12866)

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (5) Is the description of the rule in 
the SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the rule? (6) What else could we do to make the rule 
easier to understand?
    Send your comments concerning how we could make this rule easier to 
understand to: Office of Regulatory Affairs, Department of the 
Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may 
also e-mail your comments to: <a href="/cdn-cgi/l/email-protection#5d18252e383e1d34322e73393234733a322b"><span class="__cf_email__" data-cfemail="bffac7ccdadcffd6d0cc91dbd0d691d8d0c9">[email protected]</span></a>.

Literature Cited

Rakes, P. L., P. W. Shute, and J. R. Shute. 1998. Captive propagation 
and population monitoring of rare Southeastern fishes. Final Report for 
1997. Field Season and Quarterly Report for Fiscal Year 1998, prepared 
for Tennessee Wildlife Resources Agency, Contract No. FA-4-10792-5-00. 
32 pp.
Rakes, P. L., and J. R. Shute. 1999. Results of assays of portions of 
the French Broad River, Sevier and Knox Counties, Tennessee, and Shoal 
Creek, Lawrence and Wayne Counties, Tennessee and Lauderdale Counties, 
Alabama, for suitable habitat to support reintroduction of rare fishes. 
Unpublished report prepared by Conservation Fisheries, Inc., Knoxville, 
Tennessee, for the U.S. Fish and Wildlife Service, Asheville, North 
Carolina. 26 pp.
Rakes, P.L., P.W. Shute, and J.R. Shute. 2001. Captive propagation and 
population monitoring of rare southeastern fishes: 2000. Unpublished 
Report to Tennessee Wildlife Resources Agency, Contract No. FA-99-
13085-00.
Rakes, P.L. and J.R. Shute. 2002. Captive propagation and population 
monitoring of rare southeastern fishes: 2001. Unpublished Report to 
Tennessee Wildlife Resources Agency, Contract No. FA-99-13085-00.
U.S. Fish and Wildlife Service. 1983. Spotfin Chub Recovery Plan. 
Atlanta, GA. 46 pp.
----1989. Boulder Darter Recovery Plan. Atlanta, GA. 15 pp.

Author

    The principal author of this proposed rule is Timothy Merritt (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title

[[Page 61781]]

50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Amend Sec.  17.11(h) by revising the existing entries in the 
List of Endangered and Threatened Wildlife under FISHES for ``Chub, 
spotfin,'' and ``Darter, boulder,'' to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                       When       Critical     Special
                                                            Historic range       endangered or         Status         listed      habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Chub, spotfin (=turquoise shiner)  Cyprinella            U.S.A. (AL, GA, NC,  Entire, except       T.............      28, 732     17.95(e)     17.44(c)
                                    (=Hybopsis) monacha.  TN, VA).             where listed as an
                                                                               experimental
                                                                               population..
 Do..............................  ......do............  ......do...........  Tellico River, from  XN............          732           NA     17.84(m)
                                                                               the backwaters of
                                                                               the Tellico
                                                                               Reservoir (about
                                                                               Tellico River mile
                                                                               19 (30 km))
                                                                               upstream to
                                                                               Tellico River mile
                                                                               33 (53 km), in
                                                                               Monroe County, TN.
 Do..............................  ......do............  ......do...........  Shoal Creek (from    ..............  ...........           NA     17.84(n)
                                                                               Shoal Creek mile
                                                                               41.7 (66.7 km)) at
                                                                               the mouth of Long
                                                                               Branch, Lawrence
                                                                               County, TN,
                                                                               downstream to the
                                                                               backwaters of
                                                                               Wilson Reservoir
                                                                               (Shoal Creek mile
                                                                               14 (22 km)) at
                                                                               Goose Shoals,
                                                                               Lauderdale County,
                                                                               AL, including the
                                                                               lower 5 miles (8
                                                                               km) of all
                                                                               tributaries that
                                                                               enter this reach.
 
                                                                      * * * * * * *
Darter, boulder..................  Etheostoma wapiti...  U.S.A. (AL, TN)....  Entire, except       E.............          322           NA           NA
                                                                               where listed as an
                                                                               experimental
                                                                               population.
 Do..............................  ......do............  ......do...........  Shoal Creek (from    XN............  ...........           NA     17.84(n)
                                                                               Shoal Creek mile
                                                                               41.7 (66.7 km)) at
                                                                               the mouth of Long
                                                                               Branch, Lawrence
                                                                               County, TN,
                                                                               downstream to the
                                                                               backwaters of
                                                                               Wilson Reservoir
                                                                               (Shoal Creek mile
                                                                               14 (22 km)) at
                                                                               Goose Shoals,
                                                                               Lauderdale County,
                                                                               AL, including the
                                                                               lower 5 miles (8
                                                                               km) of all
                                                                               tributaries that
                                                                               enter this reach.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Sec.  17.44  [Amended]

    3. Amend Sec.  17.44(c) by removing the words ``spotfin chub 
(Hybopsis monacha)'' and adding, in their place, the words ``spotfin 
chub (Cyprinella (=Hybopsis) monacha)''.
    4. Amend Sec.  17.84 by adding new paragraphs (m)(5) and (n), 
including maps, to read as follows:


Sec.  17.84  Special rules--vertebrates.

* * * * *
    (m) * * *

    (5) Note: Map of the NEP area for spotfin chub, duskytail 
darter, and smoky madtom in Tennessee follows:

BILLING CODE 4310-55-P

[[Page 61782]]

[GRAPHIC] [TIFF OMITTED] TP21OC04.003


[[Page 61783]]


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

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


[[Page 61784]]


[GRAPHIC] [TIFF OMITTED] TP21OC04.004


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


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