61774 Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 

assessment according to the standard 

listed in the second column.

Threat Standard 

External corrosion ..... § 192.925 

Internal corrosion in 

pipelines that transport dry gas.

§ 192.927 

Stress-corrosion 

cracking.

§ 192.929 

3. The authority citation for Part 195 

continues to read as follows:

Authority: 49 U.S.C. 5103, 60102, 60104, 

60108, 60109, 60118; and 49 CFR 1.53.

4. Add § 195.588 to read a follows:

§ 195.588 What standards apply to direct 

assessment? 

If you use direct assessment on an 

onshore pipeline to evaluate the effects 

of a threat in the first column or to meet 

any requirement of this subpart 

regarding that threat, you must carry out 

the direct assessment according to the 

standard listed in the second column.

Threat Standard 

External corrosion ..... § 192.925 of this 

chapter. 

Stress-corrosion 

cracking.

§ 192.929 of this 

chapter. 

Issued in Washington, DC, on October 14, 

2004. 

Stacey L. Gerard, 

Associate Administrator for Pipeline Safety.

[FR Doc. 04–23551 Filed 10–20–04; 8:45 am] 

BILLING CODE 4910–60–P

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.

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: 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail or Hand Delivery: Field 

Supervisor, U.S. Fish and Wildlife 

Service, Tennessee Field Office, 446 

Neal Street, Cookeville, Tennessee, 

38501. 

• Fax: (931) 528–7075. 

• E-mail: timothy_merritt@fws.gov.

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 

timothy_merritt@fws.gov.

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 

Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 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 captivebred 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 turquoiseroyal 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 

61776 Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 

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 

Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 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 

61778 Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 

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.

Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 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 

61780 Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 

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 email your comments to: 

Exsec@ios.doi.gov.

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. 

ll1989. 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 

Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 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 § 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:

§ 17.11 Endangered and threatened 

wildlife.

* * * * *

(h) * * *

Species 

Historic range 

Vertebrate population 

where endangered or 

threatened 

Status When

listed 

Critical

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

FISHES

* * * * * * * 

Chub, spotfin (=turquoise 

shiner).

Cyprinella (=Hybopsis) 

monacha.

U.S.A. (AL, GA, NC, TN, 

VA).

Entire, except where listed as an experimental 

population..

T ............ 28, 732 17.95(e) 17.44(c) 

Do ............................ ......do ............................. ......do ............................. Tellico River, from 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.

XN ......... 732 NA 17.84(m) 

Do ............................ ......do ............................. ......do ............................. 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.

............... .................... NA 17.84(n) 

* * * * * * * 

Darter, boulder ................ Etheostoma wapiti ......... U.S.A. (AL, TN) .............. Entire, except where listed as an experimental 

population.

E ........... 322 NA NA 

Do ............................ ......do ............................. ......do ............................. 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.

XN ......... .................... NA 17.84(n) 

* * * * * * * 

§ 17.44 [Amended] 

3. Amend § 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 § 17.84 by adding new 

paragraphs (m)(5) and (n), including 

maps, to read as follows:

§ 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

61782 Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 


EP21OC04.003</GPH>
Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 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 § 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:

61784 Federal Register / Vol. 69, No. 203 / Thursday, October 21, 2004 / Proposed Rules 

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


EP21OC04.004</GPH>