§ 17.85 Species-specific rules—invertebrates. ( a ) *Fourteen mollusks in the Tennessee River.* The species in the following table comprise nonessential experimental populations (NEPs): Common name
Scientific name Cumberland bean (pearlymussel)
*Villosa trabalis* purple cat's paw pearlymussel
*Epioblasma obliquata*. clubshell
*Pleurobema clava* Cumberlandian combshell
*Epioblasma brevidens* Alabama lampmussel
*Lampsilis virescens* winged mapleleaf (mussel)
*Quadrula fragosa* Cumberland monkeyface (pearlymussel)
*Theliderma intermedia.* oyster mussel
*Epioblasma capsaeformis* birdwing pearlymussel
*Lemiox rimosus* cracking pearlymussel
*Hemistena lata* dromedary pearlymussel
*Dromus dromas* fine-rayed pigtoe
*Fusconaia cuneolus* shiny pigtoe
*Fusconaia cor* Anthony's riversnail
*Athearnia anthonyi*
( 1 ) *Where are these mollusks designated as nonessential experimental populations (NEPs)?* ( i ) The NEP Area for these 14 mollusks is within the species' historic ranges, and is defined as follows: The free-flowing reach of the Tennessee River from the base of Wilson Dam downstream to the backwaters of Pickwick Reservoir (river mile (RM) 259.4 [414.0 km] to RM 246.0 [393.6 km] and includes the lower 5 RM (8 km) of all tributaries to this reach in Colbert and Lauderdale Counties, Alabama.
( ii ) None of the identified species are known to exist in any of the tributaries to the free-flowing reach of the Tennessee River below Wilson Dam or from below the backwaters of Pickwick Reservoir, Colbert and Lauderdale Counties, Alabama. In the future, if any of the 14 mollusks are found upstream of the lower 5 RM (8 km) of these tributaries or downstream into Pickwick Reservoir, we will presume the animals came from the reintroduced NEP, and we will amend this rule and enlarge the boundaries of the NEP Area 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 activities are not allowed in the NEP Area?* ( i ) Except as expressly allowed in the rule in this paragraph (a), all the prohibitions of § 17.31(a) and (b) apply to the mollusks identified in the rule in this paragraph (a).
( ii ) Any manner of take not described under paragraph (a)(3) of this section will not be allowed in the NEP Area. We may refer the 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 14 mollusks, or parts thereof, that are taken or possessed in violation of these regulations 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 this paragraph (a).
( 3 ) *What take is allowed in the NEP Area?* ( i ) Take of these species that is accidental and incidental to an otherwise lawful activity such as fishing, boating, commercial navigation, trapping, wading, or mussel harvesting, is allowed.
( ii ) Any individual collecting or harvesting mussels must check their collection prior to leaving the immediate area and return any NEP mussels to the site where they were obtained.
( 4 ) *How will the effectiveness of these reintroductions be monitored?* We will prepare periodic progress reports and fully evaluate these reintroduction efforts after 5 and 10 years to determine whether to continue or terminate the reintroduction efforts.
( b ) *Sixteen mollusks in the French Broad and Holston Rivers.* The species in the following table comprise nonessential experimental populations (NEP): Common name
Scientific name Cumberland bean (pearlymussel)
*Villosa trabalis* Cumberlandian combshell
*Epioblasma brevidens* fanshell
*Cyprogenia stegaria* Appalachian monkeyface (pearlymussel)
*Theliderma sparsa*. Cumberland monkeyface (pearlymussel)
*Theliderma intermedia*. oyster mussel
*Epioblasma capsaeformis* birdwing pearlymussel
*Lemiox rimosus* cracking pearlymussel
*Hemistena lata* dromedary pearlymussel
*Dromus dromas* fine-rayed pigtoe
*Fusconaia cuneolus* rough pigtoe
*Pleurobema plenum* shiny pigtoe
*Fusconaia cor* orange-foot pimpleback (pearlymussel)
*Plethobasus cooperianus* ring pink (mussel)
*Obovaria retusa* white wartyback (pearlymussel)
*Plethobasus cicatricosus* Anthony's riversnail
*Athearnia anthonyi*
( 1 ) *Where are these mollusks designated as NEPs?* ( i ) The NEP area for these mollusks is within the species' historical range and is defined as follows: The French Broad River, Knox and Sevier Counties, Tennessee, from the base of Douglas Dam (river mile (RM) 32.3 (51.7 kilometers (km)) downstream to the confluence with the Holston River; then up the Holston River, Knox, Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee Dam (RM 52.3 (83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter these river reaches. None of the species identified in paragraph (b) are known to exist in any of the tributaries to the free-flowing reaches of the French Broad River below Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, Tennessee. Based on their habitat requirements, we do not expect these species to become established outside this NEP area. However, if any individuals are found 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 (b)(1)(i) of this section to enlarge the boundaries of the NEP area to include the entire range of the expanded population.
( ii ) Another NEP area for 10 of these mollusks (Cumberland bean, Cumberlandian combshell, Cumberland monkeyface, oyster mussel, birdwing pearlymussel, cracking pearlymussel, dromedary pearlymussel, fine-rayed pigtoe, shiny pigtoe, and Anthony's riversnail) is provided in paragraph (a) of this section.
( 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 activities are not allowed in the NEP area?* ( i ) Except as expressly allowed in paragraph (b)(3) of this section, all the prohibitions of § 17.31(a) and (b) apply to the mollusks identified in paragraph (b) of this section.
( ii ) Any manner of take not described under paragraph (b)(3) of this section will not be allowed in the NEP area. We may refer the 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 mollusks, or parts thereof, that are taken or possessed in violation of paragraph (b)(2) 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 (b)(2) of this section.
( 3 ) *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.
( 4 ) *How will the effectiveness of these reintroductions be monitored?* We will prepare periodic progress reports and 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 in Tennessee for the 16 mollusks listed in paragraph (b) of this section follows:
( c ) American Burying Beetle (*Nicrophorus americanus*). ( 1 ) *Where is the American burying beetle designated as a nonessential experimental population (NEP)?* ( i ) The NEP area for the American burying beetle is within the species' historical range and is defined as follows: The Missouri Counties of Cedar, St. Clair, Bates, and Vernon.
( ii ) The American burying beetle is not known to exist in Cedar, St. Clair, Bates, or Vernon Counties in Missouri, as of the date of enacting this regulation. Based on its habitat requirements and movement patterns, we do not expect this species to become established outside this NEP area.
( 2 ) *What activities are not allowed in the NEP area?* ( i ) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means, American burying beetles, or parts thereof, that are taken or possessed in violation of paragraph (c)(3) of this section or in violation of applicable State fish and wildlife laws or regulations or the Act.
( ii ) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (c)(2)(i) of this section.
( 3 ) *What take is allowed in the NEP area?* Take of this species that is accidental and incidental to an otherwise legal activity, such as agriculture, forestry and wildlife management, land development, recreation, and other activities, is allowed.
( 4 ) *How will the effectiveness of these reintroductions be monitored?* We will prepare periodic progress reports and fully evaluate these reintroduction efforts after 5 years to determine whether to continue or terminate the reintroduction efforts.
( 5 ) *Note:* Map of the NEP area for the American burying beetle follows:
( d ) Oregon Silverspot Butterfly (*Speyeria zerene hippolyta*). ( 1 ) *Where is the Oregon silverspot butterfly designated as a nonessential experimental population (NEP)?* ( i ) The NEP areas for the Oregon silverspot butterfly are within the subspecies' historical range in Tillamook and Clatsop Counties, Oregon. The boundary of the NEP includes those Public Land Survey System sections intersecting with a 4.25-mile (6.8-kilometer) radius around the release locations. This boundary was selected to encompass all likely movements of Oregon silverspot butterflies away from the release areas while maintaining geographic separation from existing populations. ( A ) The Nestucca Bay NEP area, centered on the coastal prairie habitat on the Cannery Hill Unit of the Nestucca Bay National Wildlife Refuge (Nestucca Bay NEP area), includes Township 4 South, Range 10 West, Sections 15 through 36; Township 4 South, Range 11 West, Sections 13, 24, 25, and 36; Township 5 South, Range 10 West, Sections 2 through 11, 14 through 23, 27 through 30; and Township 5 South, Range 11 West, Sections 12, 13, 24, and 25.
( B ) The Saddle Mountain NEP area, centered on the coastal prairie habitat on top of Saddle Mountain State Natural Area (Saddle Mountain NEP area), includes Township 6 North, Range 7 West, Sections 7, 17 through 20, 29 through 32; Township 6 North, Range 8 West, Sections 1 through 36; Township 6 North, Range 9 West, Sections 1, 11 through 14, 23 through 26, 35, and 36; Township 5 North, Range 7 West, Sections 5 through 8, 17, 18, and 19; Township 5 North, Range 8 West, Sections 1 through 24; and Township 5 North, Range 9 West, Sections 1, 2, 3, 11, 12, 13, and 14.
( ii ) The nearest known extant population to the Nestucca Bay NEP area is 8 miles (13 kilometers) to the south, beyond the longest known flight distance of the butterfly (4.1 miles (6.6 kilometers)) and with little or no suitable habitat between them. The nearest known extant population to the Saddle Mountain NEP area is 50 miles (80 kilometers) to the south, well beyond the longest known flight distance of the butterfly (4.1 miles (6.6 kilometers)). Given its habitat requirements, movement patterns, and distance from extant populations, the NEP is wholly separate from extant populations, and we do not expect the reintroduced Oregon silverspot butterflies to become established outside the NEP areas. Oregon silverspot butterflies outside of the NEP boundaries will assume the status of Oregon silverspot butterflies within the geographic area in which they are found.
( iii ) We will not change the NEP designations to “essential experimental,” “threatened,” or “endangered” within the NEP areas without engaging in notice-and-comment rulemaking. Additionally, we will not designate critical habitat for this NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).
( 2 ) *What take of the Oregon silverspot butterfly is allowed in the NEP areas?* ( i ) Oregon silverspot butterflies may be taken within the NEP area, provided that such take is not willful, knowing, or due to negligence, and is incidental to carrying out an otherwise lawful activity, such as agriculture, forestry and wildlife management, land development, recreation, and other activities that are in accordance with Federal, State, Tribal, and local laws and regulations.
( ii ) Any person with a valid permit issued by the Service under 50 CFR 17.32 may take the Oregon silverspot butterfly for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act. Additionally, any employee or agent of the Service, any other Federal land management agency, or a State conservation agency, who is designated by the agency for such purposes, may, when acting in the course of official duties, take an Oregon silverspot butterfly in the wild in the NEP area if such action is necessary: ( A ) For scientific purposes;
( B ) To relocate Oregon silverspot butterflies to avoid conflict with human activities;
( C ) To relocate Oregon silverspot butterflies within the NEP area to improve Oregon silverspot butterfly survival and recovery prospects or for genetic purposes;
( D ) To relocate Oregon silverspot butterflies from one population in the NEP into another in the NEP, or into captivity;
( E ) To euthanize an injured Oregon silverspot butterfly;
( F ) To dispose of a dead Oregon silverspot butterfly, or salvage a dead Oregon silverspot butterfly for scientific purposes;
( G ) To relocate an Oregon silverspot butterfly that has moved outside the NEP area back into the NEP area; or
( H ) To aid in law enforcement investigations involving the Oregon silverspot butterfly.
( 3 ) *What take of Oregon silverspot butterfly is not allowed in the NEP area?* ( i ) Except as expressly allowed in paragraph (d)(2) of this section, all of the provisions of 50 CFR 17.31(a) and (b) apply to the Oregon silverspot butterfly in areas identified in paragraph (d)(1) of this section.
( ii ) A person may not possess, sell, deliver, carry, transport, ship, import, or export by any means, Oregon silverspot butterflies, or parts thereof, that are taken or possessed in a manner not expressly allowed in paragraph (d)(2) of this section or in violation of applicable State fish and wildlife laws or regulations or the Act.
( iii ) Any manner of take not described under paragraph (d)(2) of this section is prohibited in the NEP areas.
( iv ) A person may not attempt to commit, solicit another to commit, or cause to be committed any take of the Oregon silverspot butterfly, except as expressly allowed in paragraph (d)(2) of this section.
( 4 ) *How will the effectiveness of these reintroductions be monitored?* We will monitor populations annually for trends in abundance in cooperation with partners, monitor habitat quality, and prepare annual progress reports. We will fully evaluate reintroduction efforts after 5 years to determine whether to continue or terminate the reintroduction efforts.
( 5 ) *Maps of the NEP areas for the Oregon silverspot butterfly in Northwest Oregon.* ( i ) *Note:* Map of the Oregon silverspot butterfly NEP follows:
( ii ) *Note:* Map of Nestucca Bay NEP area for the Oregon silverspot butterfly follows:
( iii ) *Note:* Map of Saddle Mountain NEP area for the Oregon silverspot butterfly follows:
[66 FR 32263, June 14, 2001, as amended at 72 FR 52459, Sept. 13, 2007; 77 FR 16717, Mar. 22, 2012; 82 FR 28578, June 23, 2017; 87 FR 8965, Feb.17, 2022; 87 FR 15145, Mar. 17, 2022; 88 FR 42652, July 3, 2023; 88 FR 71672, Oct. 17, 2023]