50918 Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / Proposed Rules 

proposal described in the NPRM. TSA 

intends to analyze the public comments 

and issue a final rule. 

Specific Issues for Discussion 

There are several areas in particular in 

which TSA seeks information and 

comment from the industry at the public 

meeting, listed below. These key issues 

are intended to help focus public 

comments on subjects that TSA must 

explore in order to complete its review 

of the proposed Secure Flight program. 

The comments at the meeting need not 

be limited to these issues, and TSA 

invites comments on any other aspect of 

the proposed Secure Flight program. 

These are: 

(1) Proposed data elements. 

(2) Proposed data retention schedule. 

(3) Proposed 72-hour data 

transmission requirement. 

(4) Proposed watch list matching 

procedures for overflights. 

(5) Proposed watch list matching 

procedures for international 2-leg 

boarding pass issuance. 

(6) Proposed requirement for placing 

a code, such as a bar code, on boarding 

passes. 

(7) Proposed privacy notice 

requirement. 

(8) Proposed compliance schedule 

and estimated compliance costs. 

Participation at the Meeting 

The meeting is expected to begin at 9 

a.m. Following an introduction by TSA, 

members of the public will be invited to 

ask clarifying questions or present their 

views. 

Anyone wishing to present an oral 

statement at the meeting must register to 

present comments between 8 and 9:30 

a.m. on the day of the meeting, and 

provide his or her name and affiliation. 

Such requests will be met on a firstcome, first-served basis. Speakers 

should keep comments brief and plan to 

speak for no more than five minutes 

when presenting comments. 

Public Meeting Procedures 

TSA will use the following 

procedures to facilitate the meeting: 

(1) There will be no admission fee or 

other charge to attend or to participate 

in the meeting. The meeting will be 

open to all persons. All persons who 

wish to present an oral statement must 

register to present comments between 8 

and 9:30 a.m. on the day of the meeting. 

TSA will make every effort to 

accommodate all persons who wish to 

participate, but admission will be 

subject to availability of space in the 

meeting room. The meeting may adjourn 

early if scheduled speakers complete 

their statements or questions in less 

time than is scheduled for the meeting. 

(2) An individual, whether speaking 

in a personal or a representative 

capacity on behalf of an organization, 

will be limited to a five-minute 

statement and scheduled on a firstcome, first-served basis. 

(3) Any speaker prevented by time 

constraints from speaking will be 

encouraged to submit written remarks, 

which will be made part of the record. 

(4) For information on facilities or 

services for individuals with disabilities 

or to request assistance at the meeting, 

please contact the person listed in the 

FOR FURTHER INFORMATION CONTACT

section above before September 13, 

2007. 

(5) Representatives of TSA will 

preside over the meeting. 

(6) The meeting will be recorded by 

a court reporter. Any person who is 

interested in purchasing a copy of the 

transcript should contact the court 

reporter directly. 

(7) Statements made by TSA 

representatives are intended to facilitate 

discussion of the issues or to clarify 

issues. Any statement made during the 

meeting by a TSA representative is not 

intended to be, and should not be 

construed as, a position of TSA. 

(8) The meeting is designed to invite 

public views and gather additional 

information. No individual will be 

subject to cross-examination by any 

other participant; however, TSA 

representatives may ask questions to 

clarify a statement. 

Issued in Arlington, Virginia, on August 

31, 2007. 

Stephanie Rowe, 

Assistant Administrator for Transportation 

Threat Assessment & Credentialing. 

[FR Doc. E7–17607 Filed 9–4–07; 8:45 am] 

BILLING CODE 9110–05–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU68 

Endangered and Threatened Wildlife 

and Plants; Establishment of a 

Nonessential Experimental Population 

of Rio Grande Silvery Minnow in the 

Big Bend Reach of the Rio Grande in 

Texas 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; notice of 

availability of draft environmental 

assessment; notice of public hearing. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), in 

cooperation with the National Park 

Service, and the United States Section 

of the International Boundary and Water 

Commission, propose to reestablish the 

Rio Grande silvery minnow 

(Hybognathus amarus), a Federally 

listed endangered fish, into its historic 

habitat in the Big Bend reach of the Rio 

Grande in Presidio, Brewster, and 

Terrell counties, Texas. 

We propose to reestablish the Rio 

Grande silvery minnow under section 

10(j) of the Endangered Species Act of 

1973, as amended (ESA), and to classify 

it as a nonessential experimental 

population (NEP). On the Rio Grande, 

the geographic boundaries of the NEP 

would extend from Little Box Canyon 

downstream of Ft. Quitman, Hudspeth 

County, Texas, through Big Bend 

National Park and the Rio Grande Wild 

and Scenic River, to Amistad Dam and 

the nearby railroad bridge (Big Bend 

reach of the Rio Grande). On the Pecos 

River, the geographic boundaries of the 

NEP would extend from the river’s 

confluence with Independence Creek to 

its confluence with the Rio Grande. 

This proposed reestablishment is part 

of the recovery actions that the Service, 

Federal and State agencies, and other 

partners are conducting throughout the 

species’ historic range. This proposed 

rule provides a plan for establishing the 

NEP and provides for limited allowable 

legal taking of Rio Grande silvery 

minnows within the defined NEP area. 

A draft environmental assessment 

(EA) has been prepared on this 

proposed action and is available for 

comment (see ADDRESSES section 

below). 

DATES: We request that comments on 

this proposal be submitted by the close 

of business on November 5, 2007. We 

will also hold one public hearing on this 

proposed rule on October 10, 2007, at 7 

p.m. 

ADDRESSES: Written Comments. You 

may submit written comments and other 

information by any of the following 

methods (please see ‘‘Public Comments 

Solicited’’ section below for additional 

guidance): 

1. Mail or hand delivery: Field 

Supervisor, Austin Ecological Services 

Field Office, 107011 Burnet Road, Suite 

200, Austin, TX 78758. 

2. Fax: (512) 490–0974. 

3. E-mail: Aimee_Roberson@fws.gov. 

Obtaining information from the 

Service. You may obtain copies of the 

proposed rule and the draft EA from the 

street address given above or by calling 

(512) 490–0057. The proposed rule and 

draft EA are also available from our Web 

site at http://www.fws.gov/southwest/es/ 

Library/. 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / Proposed Rules 50919 

The supporting file for this proposed 

rule will be available for public 

inspection, by appointment, during 

normal business hours, at the New 

Mexico Ecological Services Field Office, 

2105 Osuna Road NE., Albuquerque, 

New Mexico 87113 and at the Fish and 

Wildlife Service’s office at 500 West 

Avenue H, Suite 104F, Alpine, Texas 

79830. 

Public Hearing 

The public hearing will be held 

October 10, 2007, at Sul Ross State 

University, Gallego Center, Room 129, 

Alpine, Texas. The hearing will begin at 

7 p.m. and last until 8:45 p.m., with an 

informal question and answer session 

beginning at 6 p.m. 

FOR FURTHER INFORMATION CONTACT: 

Adam Zerrenner, Field Supervisor, 

Austin Ecological Services Field Office, 

telephone (512)–490–0057 (see 

ADDRESSES above). 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We want the final rule to be as 

effective as possible and the final EA on 

the proposed action to evaluate all 

potential issues associated with this 

action. Therefore, we invite the public, 

Tribal and government agencies, the 

scientific community, industry, and 

other interested parties to submit 

comments or recommendations 

concerning any aspect of this proposed 

rule and the draft EA. Comments should 

be as specific as possible. 

To issue a final rule to implement this 

proposed action and to determine 

whether to prepare a finding of no 

significant impact or an environmental 

impact statement, we will take into 

consideration all comments and any 

additional information we receive. Such 

communications may lead to a final rule 

that differs from this proposal. All 

comments, including commenters’

names and addresses, if provided to us, 

will become part of the supporting 

record. 

If you wish to provide comments and/ 

or information, you may submit your 

comments and materials by any one of 

several methods (see ADDRESSES

section). 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: RGSM Proposed 

10(j) Designation,’’ in your e-mail 

message. 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Background 

Legislative 

The ESA 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 ESA, among other things, prohibits 

the take of endangered wildlife. ‘‘Take’’

is defined by the ESA as harass, harm, 

pursue, hunt, shoot, wound, kill, 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 ESA outlines 

the procedures for Federal interagency 

cooperation to conserve federally listed 

species and protect designated critical 

habitat. It mandates that all Federal 

agencies use their existing authorities to 

further the purposes of the ESA by 

carrying out programs for the 

conservation of 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 ESA does not 

affect activities undertaken on private 

land unless they are authorized, funded, 

or carried out by a Federal agency. 

Under section 10(j) of the ESA, the 

Secretary of the Department of the 

Interior can designate reintroduced 

populations established outside the 

species’ current range, but within its 

historic range, as ‘‘experimental.’’ With 

the experimental population 

designation, the relevant population is 

treated as threatened for purposes of 

section 9 of the ESA, regardless of the 

species’ designation elsewhere in its 

range. Threatened designation allows us 

greater discretion in devising 

management programs and special 

regulations for such a population. 

Section 4(d) of the ESA allows us to 

adopt whatever regulations are 

necessary and advisable 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 10(j) 

rule contains the prohibitions and 

exemptions necessary and appropriate 

to conserve that species. 

Based on the best scientific and 

commercial data available, we must 

determine whether the experimental 

population is essential or nonessential 

to the continued existence of the 

species. The regulations (50 CFR 17.80b) 

state that an experimental population is 

considered essential if its loss would be 

likely to appreciably reduce the 

likelihood of survival of that species in 

the wild. All other populations are 

considered nonessential. We have 

determined that this experimental 

population would not be essential to the 

continued existence of the species in the 

wild. Therefore, the Service is 

proposing to designate a nonessential 

experimental population (NEP) for the 

species in this area. 

For the purposes of section 7 of the 

ESA, we treat an NEP 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 ESA apply. Section 7(a)(1) 

requires all Federal agencies to use their 

authorities to carry out programs for the 

conservation of 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 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 in 

the form of conservation 

recommendations that are optional as 

the agencies carry out, fund, or 

authorize activities. Activities that are 

not carried out, funded, or authorized 

by Federal agencies, and are not on 

Federal lands are not affected by a NEP 

designation. 

Rio Grande silvery minnows 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 


rfrederick on PROD1PC67 with PROPOSALS
50920 Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / Proposed Rules 

case of the Rio Grande silvery minnow, 

the donor population is a captive-bred 

population that was propagated with the 

intention of re-establishing wild 

populations to achieve recovery goals. 

In addition, it is possible that stock 

raised from wild eggs could also be 

released into the NEP area. Rio Grande 

silvery minnow eggs are collected from 

the wild population in New Mexico 

each year and are raised in captivity to 

provide individuals for captive 

propagation and augmentation of the 

wild population. 

Critical habitat has been designated 

for the Rio Grande silvery minnow in 

New Mexico (68 FR 8088–8135; 

February 19, 2003), and the designated 

critical habitat does not include this 

NEP area. Section 10(j)(2)(C)(ii) of the 

ESA 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 an NEP. 

Biological 

The Rio Grande silvery minnow is 

one of seven species in the genus 

Hybognathus found in the United States 

(Pflieger 1980, p. 177). The species was 

first described by Girard (1856 in 

Service 1999, p. 38) from specimens 

taken from the Rio Grande near Fort 

Brown, Cameron County, Texas. It is a 

stout silvery minnow with moderately 

small eyes and a small, slightly oblique 

mouth. Adults may reach 5 inches (in) 

(125 millimeters (mm)) in total length 

(Remshardt 2006b). Its dorsal fin is 

distinctly pointed with the front of it 

located slightly closer to the tip of the 

snout than to the base of the tail. The 

fish is silver with emerald reflections. 

Its belly is silvery white, its fins are 

plain, and barbels are absent (Sublette et 

al. 1990, pp. 129–130). 

This species was historically one of 

the most abundant and widespread 

fishes in the Rio Grande Basin, 

occurring from Espan ̃ ola, New Mexico, 

to the Gulf of Mexico (Bestgen and 

Platania 1991, p. 225). It was also found 

in, but is now absent from, the Pecos 

River, a major tributary of the Rio 

Grande, from Santa Rosa, New Mexico, 

downstream to its confluence with the 

Rio Grande (Pflieger 1980, p. 177). The 

Rio Grande silvery minnow is extirpated 

from the Pecos River and also from the 

Rio Grande downstream of Elephant 

Butte Reservoir and upstream of Cochiti 

Reservoir (Bestgen and Platania 1991, 

pp. 226–229). The current distribution 

of the Rio Grande silvery minnow is 

limited to the Rio Grande between 

Cochiti Dam and Elephant Butte 

Reservoir in New Mexico, which is only 

about 5 percent of its historic range 

(Bestgen and Platania 1991, pp. 226–

229). Throughout much of its historic 

range, the decline of the Rio Grande 

silvery minnow has been attributed to 

modification of the flow regime 

(hydrological pattern of flows that vary 

seasonally in magnitude and duration, 

depending on annual precipitation 

patterns such as runoff from snowmelt), 

channel drying, reservoirs and dams, 

stream channelization, and perhaps 

interactions with nonnative fish and 

decreasing water quality (Cook et al. 

1992, p. 42; Bestgen and Platania 1991, 

pp. 229–230; Service 1999, pp. 1–2). 

Development of agriculture and the 

growth of cities within the historic 

range of the Rio Grande silvery minnow 

resulted in a decrease in the quality of 

river water caused by municipal and 

agricultural runoff (i.e., sewage and 

pesticides) that may have also adversely 

affected the range and distribution of 

the Rio Grande silvery minnow (Service 

1999, p. 2). 

The various life history stages of the 

Rio Grande silvery minnow require low 

velocity habitats with a sandy and silty 

substrate that is generally associated 

with a meandering river that includes 

side channels, oxbows, and backwaters 

(Bestgen and Platania 1991, pp. 227–

228). Although the Rio Grande silvery 

minnow is a hardy fish, capable of 

withstanding many of the natural 

stresses of the desert aquatic 

environment, its maximum documented 

longevity in the wild is about 25 

months, and very few survive more than 

13 months. However, it is not 

uncommon for Rio Grande silvery 

minnows in captivity to live beyond 2 

years (Service 2007, p. 8). Thus, a 

successful annual spawn is key to the 

survival of the species (Service 1999, p. 

20; Dudley and Platania 2001, pp. 16–

21; Dudley and Platania 2002, p. 3). 

More information about the life history 

and decline of the Rio Grande silvery 

minnow can be found in the final 

designation of critical habitat for the 

species (February 19, 2003; 68 FR 8088–

8090) and in the Rio Grande Silvery 

Minnow Recovery Plan (Recovery Plan; 

Service 1999, pp. 1–38). 

The Rio Grande silvery minnow is 

extirpated from the Big Bend reach of 

the Rio Grande (Service 2007). Natural 

repopulation is not possible without 

human assistance due to extensive 

reaches of river with no Rio Grande 

silvery minnow habitat (including large 

reservoirs, where this species cannot 

survive) between where the species 

currently exists in the wild in New 

Mexico and the Big Bend reach. Reasons 

for the species’ extirpation in the Rio 

Grande in Texas are uncertain, but are 

believed to have been due to a 

combination of low flows caused by 

drought and diversions and of water 

pollution in the 1950s (Edwards 2005, 

p. 3). The last documentation of a Rio 

Grande silvery minnow in the Big Bend 

reach of the Rio Grande was in 1960 

(Bestgen and Platania 1991, p. 229). 

However, the Big Bend reach has not 

experienced extensive drying since the 

drought of the 1950s, and the 

continuing presence of members of the 

pelagic spawning guild with life history 

requirements similar to the Rio Grande 

Silvery minnow are evidence that the 

Big Bend reach of the Rio Grande may 

support reestablishment of Rio Grande 

silvery minnow (Edwards 2005, pp. 37–

38). Water quality in the Big Bend reach 

appears to be generally improving over 

time, and we do not believe it is a 

primary determinant of the survivability 

of the Rio Grande silvery minnow in 

this reach (Edwards 2005). In addition, 

most of the Rio Grande in the Big Bend 

Reach on both sides of the river is 

designated as a conservation area and 

managed for habitat protection and 

improvement by the State of Texas, the 

National Park Service, and 

governmental agencies and private 

organizations in Mexico (Edwards 2005, 

p. 11). 

The Service contracted a study 

examining the suitability of the habitat 

in the Big Bend reach of the Rio Grande 

for the Rio Grande silvery minnow. The 

completed study indicates that there is 

a reasonable likelihood that Rio Grande 

silvery minnows will survive in this 

portion of the Rio Grande. It also 

identifies the need for habitat 

restoration projects, with an emphasis 

on the removal of invasive, nonnative 

species, such as salt cedar (Tamarix 

chinensis) and giant river cane (also 

known as giant reed; Arundo donax), 

which can prevent sediment from 

entering the river in amounts that are 

needed to form Rio Grande silvery 

minnow habitat (Edwards 2005, pp. 43–

44). We anticipate working with land 

managers and other interested parties, 

on a voluntary basis, to develop plans 

to further guide and accomplish habitat 

management and restoration activities, 

including removal and control of 

invasive, nonnative species, such as salt 

cedar and giant river cane. 

Recovery Efforts 

We published the final rule to 

federally list the Rio Grande silvery 

minnow on July 20, 1994 (59 FR 36988). 

Restoring an endangered or threatened 

species to the point where it is 

recovered is a primary goal of our 

endangered species program. Thus, on 

July 1, 1994, the Rio Grande Silvery 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / Proposed Rules 50921 

Minnow Recovery Team (Recovery 

Team) was established under section 

4(f)(2) of the ESA and our cooperative 

policy on recovery plan participation, a 

policy intended to involve stakeholders 

in recovery planning (July 1, 1994; 59 

FR 34272). Numerous individuals, 

agencies, and affected parties were 

involved in the development of the 

Recovery Plan or otherwise provided 

assistance and review (Service 1999, pp. 

63–67). On July 8, 1999, we finalized 

the Recovery Plan (Service 1999, 71 

pp.). The Recovery Plan has been 

updated and revised, and a draft revised 

Recovery Plan (Service 2007) was 

released for public comment on January 

18, 2007 (72 FR 2301). 

The draft revised Recovery Plan 

describes recovery goals for the Rio 

Grande silvery minnow (Service 2007, 

pp. 66–73) and actions for their 

completion (Service 2007, pp. 74–109). 

The three goals identified for the 

recovery and delisting of the Rio Grande 

silvery minnow are: 

(1) Prevent the extinction of the Rio 

Grande silvery minnow in the middle 

Rio Grande of New Mexico; 

(2) Recover the Rio Grande silvery 

minnow to an extent sufficient to 

change its status on the List of 

Endangered and Threatened Wildlife 

from endangered to threatened 

(downlisting). This may be considered 

when three populations (including at 

least two that are self-sustaining) of the 

species have been established within 

the historic range of the species and 

have been maintained for at least 5 

years; and 

(3) Recover the Rio Grande silvery 

minnow to an extent sufficient to 

remove it from the List of Endangered 

and Threatened Wildlife (delisting). 

This may be considered when three selfsustaining populations have been 

established within the historic range of 

the species, and they have been 

maintained for at least 10 years (Service 

2007, p. 66). 

The Rio Grande silvery minnow’s 

range has been so greatly restricted that 

the species is extremely vulnerable to 

catastrophic events, such as a prolonged 

period of low or no flow in its habitat 

in the middle Rio Grande in New 

Mexico (i.e., the loss of all surface 

water) (Dudley and Platania 2001, p. 

21). Reestablishment of the Rio Grande 

silvery minnow into other areas of its 

historic range will assist in the species’

recovery and long-term survival in part 

because it is unlikely that any single 

event would simultaneously eliminate 

the Rio Grande silvery minnow from 

three geographic areas (Service 1999, 

pp. 57–61). 

The Recovery Team developed a 

reach-by-reach analysis of the Rio 

Grande and Pecos River basins to 

identify the salient hydrological, 

chemical, and biological features of each 

reach. This analysis addressed the 

threats to the Rio Grande silvery 

minnow and considered the suitability 

of each reach for potential 

reestablishment (Service 2007). 

The Recovery Team’s reach-by-reach 

analysis considered: (1) The reasons for 

the species’ extirpation from the 

selected reach; (2) the presence of other 

members of the reproductive guild 

(pelagic spawner; non-adhesive, 

semibuoyant eggs); (3) habitat 

conditions (including susceptibility to 

river drying and presence of diversion 

structures); and (4) the presence of 

congeners (i.e., other species of 

Hybognathus). After completing their 

analysis, the Recovery Team identified 

the Big Bend reach of the Rio Grande as 

the first priority for reestablishment 

efforts (Service 2007, p. 160) (see 

‘‘Reestablishment Area’’ below for more 

details). 

In accordance with the Recovery Plan, 

we have initiated a captive propagation 

program for the Rio Grande silvery 

minnow (Service 1999, pp. 60–61). We 

currently have Rio Grande silvery 

minnows housed at: (1) The Service’s 

Dexter National Fish Hatchery and 

Technology Center, Dexter, New 

Mexico; (2) the City of Albuquerque’s 

Biological Park, Albuquerque, New 

Mexico; and (3) the New Mexico State 

University, Las Cruces, New Mexico. 

These facilities are actively propagating 

and rearing Rio Grande silvery 

minnows. Offspring of these fish are 

being used to augment the Rio Grande 

silvery minnow population in the 

middle Rio Grande, New Mexico. 

Ongoing recovery efforts involving the 

release of captive-bred Rio Grande 

silvery minnows for augmentation of the 

population in the middle Rio Grande of 

New Mexico have demonstrated the 

potential viability of reestablishment as 

a tool for Rio Grande silvery minnow 

conservation. In 2000, the Service 

initiated captive propagation as a 

strategy to assist in the recovery of the 

Rio Grande silvery minnow. Captive 

propagation is conducted in a manner 

that will, to the maximum extent 

possible, preserve the genetic and 

ecological distinctiveness of the Rio 

Grande silvery minnow and minimize 

risks to existing wild populations. 

Since 2000, approximately one 

million silvery minnows have been 

propagated (using both adult wild 

silvery minnows and wild-caught eggs) 

and then released into the wild in New 

Mexico. Wild gravid adults are 

successfully spawned in captivity at the 

City of Albuquerque’s propagation 

facilities. Eggs left in the wild have a 

very low survivorship and spawning in 

captivity ensures that an adequate 

number of spawning adults are present 

to repopulate the river each year. While 

hatcheries continue to successfully 

spawn silvery minnows, wild eggs are 

collected to ensure genetic diversity 

within the remaining population. This 

program is carefully monitored so that 

it will not have an adverse effect on the 

wild population of Rio Grande silvery 

minnows in New Mexico. 

Direct and indirect evidence from the 

Rio Grande silvery minnow monitoring 

program indicates that augmentation 

efforts in the Rio Grande near 

Albuquerque, New Mexico, are 

contributing to an increase in catch (i.e., 

during seining) rates of Rio Grande 

silvery minnows. The success of this 

augmentation effort indicates that 

hatchery-raised individuals can be 

released back to the wild with adequate 

retention in or near original release 

sites, can experience survival of at least 

2 years after release, and ultimately can 

contribute to future spawning efforts 

(Remshardt 2006, pp. 11–12). 

The source of Rio Grande silvery 

minnows for releases in the Big Bend 

reach will likely be from the Service’s 

Dexter National Fish Hatchery and 

Technology Center, or another Service 

facility set up to provide fish 

specifically for this purpose. Expanding 

the Rio Grande silvery minnow’s 

propagation program for potential 

releases into the Big Bend reach will 

result in more fish being produced 

overall and will not negatively impact 

the current program, which is producing 

Rio Grande silvery minnows for 

augmentation of the population in New 

Mexico. 

Reestablishment Area 

The primary factors resulting in the 

determination by the Recovery Team 

that the Rio Grande reach from Presidio 

to Amistad Reservoir is the most 

suitable for reintroduction efforts are 

water quality and quantity; the presence 

of suitable habitat; a lack of barriers to 

fish movement; a lack of ongoing 

activities that are likely to adversely 

affect the Rio Grande silvery minnow; 

and that most of the Rio Grande in the 

Big Bend Reach on both sides of the 

river is designated as a conservation 

area and managed for habitat protection 

and improvement by the State of Texas, 

the National Park Service, and 

governmental agencies and private 

organizations in Mexico (Edwards 2005, 

p. 11). 


rfrederick on PROD1PC67 with PROPOSALS
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The Big Bend reach is generally 

perennial with a base flow of 

approximately 400 cubic feet per second 

(cfs). Severe flow reductions only 

occurred during the severest droughts in 

the 1950s. A period of intermittent 

drying did occur in 2003. However, this 

drying event appears to have been brief 

and occurred in a small area. In 

addition, this reach is not levied and 

has small rock dam weirs, all but one of 

which (Foster’s weir, at the end of the 

reach deemed suitable) does not appear 

to be a barrier to fish movement. The 

substrate ranges from silt to cobble and 

boulder depending on local conditions. 

Almost half of this reach is in canyons, 

including the Big Bend National Park. 

The lower canyons reach has spring 

input resulting in improved water 

quality and quantity. Outside the 

canyon reaches, the river is braided in 

some sections with a moderate gradient, 

providing areas of suitable habitat for 

Rio Grande silvery minnows. In 

addition, there are no regular channel 

maintenance activities in this reach. 

Based on the above information, we 

believe that the Rio Grande, from 

Mulato Dam (near the western border of 

Big Bend Ranch State Park) to Foster’s 

Weir, east of the Terrell/Val Verde 

county line, contains suitable habitat for 

the Rio Grande silvery minnow and that 

it is likely the species can be 

successfully reestablished in the Big 

Bend reach. Establishment of a viable 

population of Rio Grande silvery 

minnows in the Big Bend reach of the 

Rio Grande under this proposed NEP 

designation would help achieve one of 

the primary recovery goals for 

downlisting and eventually delisting 

this species (see ‘‘Recovery Efforts’’

section above for more information). 

However, it would take several years of 

monitoring to fully evaluate if Rio 

Grande silvery minnows have become 

established and remain viable in this 

river reach. 

Therefore, we are proposing to release 

the Rio Grande silvery minnow into its 

historic habitat in this area. The NEP 

area, which encompasses all potential 

release sites, will be located (1) in the 

Rio Grande, from Little Box Canyon 

downstream of Ft. Quitman, Hudspeth 

County, Texas, through Big Bend 

National Park and the Rio Grande Wild 

and Scenic River, to Amistad Dam and 

the nearby railroad bridge; and (2) in the 

Pecos River, from its confluence with 

Independence Creek to its confluence 

with the Rio Grande. 

Section 10(j) of the ESA requires that 

an experimental population be 

geographically separate from other wild 

populations of the same species. This 

NEP area is totally isolated from existing 

populations of this species by large 

reservoirs, and this fish is not known to 

move through large reservoirs. 

Therefore, the reservoirs would act as 

barriers to the species’ downstream 

movement in the Rio Grande below 

Amistad Reservoir, and would ensure 

that this NEP remains geographically 

isolated and easily distinguishable from 

existing upstream wild populations in 

New Mexico. Based on the habitat 

requirements of the Rio Grande silvery 

minnow, we do not expect them to 

become established outside the NEP. 

The geographic extent being proposed 

for NEP designation is larger than 

needed as only portions of this 

proposed NEP area contain suitable 

habitat. However, this area represents 

what we believe to be the maximum 

geographic extent to which the fish 

could move if released in the Big Bend 

reach of the Rio Grande. We believe 

including this additional area provides 

a more effective recovery strategy by 

eliminating changing regulatory 

requirements in case Rio Grande silvery 

minnows unexpectedly move beyond 

the expected establishment area. If any 

of the released Rio Grande silvery 

minnows, or their offspring, move 

outside the designated NEP area, then 

the Service would consider these fish to 

have come from the NEP area, and we 

would propose to amend this 10(j) rule 

to enlarge the boundaries of the NEP 

area to include the entire range of the 

expanded populations. 

Release Procedures 

The exact dates for releases have not 

been determined at this time. However, 

an implementation plan, including 

information about potential release 

sites, methods, and the number of 

individuals to be released, is appended 

to the draft EA and is also available for 

public comment. 

As part of the Rio Grande silvery 

minnow augmentation program in New 

Mexico, the Service evaluated different 

release strategies such as time of year, 

time of day, specific release habitats, 

and various hatchery environments 

(natural outdoor ponds versus indoor 

facilities). All of this information adds 

to our knowledge of the species and will 

assist us in future recovery actions, such 

as providing release procedures and 

monitoring strategies for the proposed 

reestablishment of Rio Grande silvery 

minnows in the Big Bend reach 

(Remshardt 2006, pp. v, 13–15). 

Status of Reestablished Population 

As stated earlier, we have determined 

that this reintroduced population is 

nonessential. This determination has 

been made for the following reasons: 

(a) An established population of Rio 

Grande silvery minnows exists in the 

middle Rio Grande, New Mexico; 

(b) Captive propagation facilities 

maintain a captive population and 

provide adequate numbers of Rio 

Grande silvery minnows to maintain the 

wild New Mexico population at current 

levels; 

(c) The additional number of silvery 

minnows needed for reestablishment 

would not inhibit the augmentation 

efforts to maintain the established 

population in the middle Rio Grande, 

New Mexico; and 

(d) The possible failure of this 

proposed action would not appreciably 

reduce the likelihood of survival of the 

species in the wild. 

If this proposal is adopted, we would 

ensure, through our section 10 

permitting authority and the section 7 

consultation process, that the use of Rio 

Grande silvery minnows from any donor 

population for releases in the Big Bend 

reach is not likely to jeopardize the 

continued existence of the species in the 

wild. Reestablishment of populations 

within the Rio Grande silvery minnow’s 

historic range is necessary to further the 

recovery of this species (Service 2007, p. 

67). 

We believe that incidental take of 

members of the NEP associated with 

otherwise lawful activities would not 

pose a substantial threat to Rio Grande 

silvery minnow recovery, as activities 

that currently occur in the NEP area are 

compatible with Rio Grande silvery 

minnow recovery. For example, there 

are no major dams or diversions in the 

Big Bend reach, which are the primary 

threats to the species within its current 

range in the Rio Grande in New Mexico. 

Also, most of the portion of the Big 

Bend reach in which we expect Rio 

Grande silvery minnows to become 

established is protected and managed 

for fish and wildlife and other natural 

resources by State and Federal agencies 

in both the United States and Mexico. 

Thus, the more stringent legal 

protections provided under an essential 

experimental population are 

unnecessary. The anticipated success of 

this reestablishment would enhance the 

conservation and recovery potential of 

this species by extending its present 

range into currently unoccupied historic 

habitat (Service 2007, pp. 159–171). 

Management 

The aquatic resources in the 

reestablishment area are managed by the 

National Park Service, the International 

Boundary and Water Commission, the 

State of Texas, and private landowners. 

Multiple-use management of these 

waters would not change as a result of 


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the experimental population 

designation. Agricultural, recreational, 

and other activities by private 

landowners within and near the NEP 

area would not be affected by this rule 

and the subsequent release of the Rio 

Grande silvery minnow. Because of the 

exceptions provided by NEP 

designation, we do not believe the 

reestablishment of Rio Grande silvery 

minnows would conflict with existing 

human activities or hinder public use of 

the area. 

The Service, the National Park 

Service, the International Boundary and 

Water Commission, and Texas Parks 

and Wildlife Department employees 

would plan and manage the 

reestablishment of Rio Grande silvery 

minnows. This group would closely 

coordinate on releases, monitoring, 

coordination with landowners and land 

managers, and public awareness, among 

other tasks necessary to ensure 

successful reestablishment of the 

species. The Service has also convened 

a Technical Team comprised of 

representatives from these agencies and 

other experts. This Technical Team 

assisted in the development of the 

Implementation and Monitoring Plan 

that is appended to the draft EA. 

(a) Mortality: The regulations 

implementing the ESA define 

‘‘incidental take’’ as take that is 

incidental to, and not the purpose of, 

the carrying out of an otherwise lawful 

activity (50 CFR 17.3) 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. If this 10(j) rule is 

finalized, take of a Rio Grande silvery 

minnows within the experimental 

population area would be allowed 

provided that the take is unintentional 

and is not due to negligent conduct. 

However, if there is evidence of 

intentional take of a Rio Grande silvery 

minnow within the experimental 

population area, we would refer the 

matter to the appropriate entities for 

investigation. We expect levels of 

incidental take to be low since the 

reestablishment is compatible with 

existing human use activities and 

practices for the area. More specific 

information regarding take can be found 

in the Proposed Regulation 

Promulgation section of this proposed 

rule. 

(b) Special handling: In accordance 

with 50 CFR 17.21(c)(3), any employee 

or agent of the Service, any other 

Federal land management agency, or 

State personnel, designated for such 

purposes, may, in the course of their 

official duties, handle Rio Grande 

silvery minnows for scientific purposes; 

relocate Rio Grande silvery minnows to 

avoid conflict with human activities; 

relocate Rio Grande silvery minnows to 

other release sites for recovery purposes; 

aid sick or injured Rio Grande silvery 

minnows; and, salvage dead Rio Grande 

silvery minnows. However, non-Service 

personnel and their agents would need 

to acquire permits from the Service for 

these activities. 

(c) Coordination with landowners and 

land managers: The Service and 

cooperators have identified issues and 

concerns associated with the proposed 

Rio Grande silvery minnow 

reestablishment through the National 

Environmental Policy Act (NEPA) (42 

U.S.C. 4321 et seq.) scoping comment 

period. The proposed reestablishment 

also has been discussed with potentially 

affected State agencies and private 

landowners. Affected State agencies, 

landowners, and land managers have 

indicated support for the proposed 

reestablishment, provided a NEP is 

designated and land and water use 

activities in the proposed NEP area are 

not constrained. 

(d) Monitoring: After the initial 

release of Rio Grande silvery minnows, 

we would monitor their presence or 

absence at least annually and document 

any spawning behavior or young-of-year 

fish that might be present. Depending 

on available resources, monitoring may 

occur more frequently, especially during 

the first few years of reestablishment 

efforts. This monitoring would be 

conducted primarily by seining and 

would be accomplished by Service, 

National Park Service, or State 

employees or by contracting with the 

appropriate species experts. Annual 

reports would be produced detailing 

stocking and monitoring activities that 

took place during the previous year. We 

would also fully evaluate these 

reestablishment efforts every 5 years to 

determine whether to continue or 

terminate them. 

(e) Public awareness and cooperation: 

On August 9, 2005, we mailed letters to 

potentially affected Congressional 

offices, Federal and State agencies, local 

governments, landowners, and 

interested parties to notify them that we 

were considering proposing NEP status 

in the Rio Grande and Pecos River for 

the Rio Grande silvery minnow. We 

received a total of 10 responses during 

the September 2005 scoping meetings 

and comment period. The comments 

received are listed in the EA and have 

been considered in the formulation of 

alternatives considered in the NEPA 

process. 

Public Hearings 

The ESA provides for one or more 

public hearings on this proposed rule, if 

requested. Given the likelihood of a 

request, we have scheduled one public 

hearing. We will hold a public hearing 

as specified above in the DATES and 

ADDRESSES section above. 

Announcements for the public hearing 

will be made in local newspapers. 

Appropriate County and State officials, 

as well as Mexican officials, will be 

notified. 

Public hearings are designed to gather 

relevant information that the public may 

have and that we should consider in our 

rulemaking. During the hearing, we will 

present information about the proposed 

action. We invite the public to submit 

information and comments at the 

hearing or in writing during the open 

public comment period. We encourage 

persons wishing to comment at the 

hearing to provide a written copy of 

their statement at the start of the 

hearing. This notice and public hearing 

will allow all interested parties to 

submit comments on the proposed NEP 

rule for the Rio Grande silvery minnow. 

We are seeking comments from the 

public, other concerned governmental 

agencies, Tribes, the scientific 

community, industry, or any other 

interested parties concerning the 

proposal. Persons may send written 

comments to the Austin Ecological 

Services Field Office (see ADDRESSES

section) at any time during the open 

comment period (See DATES section). 

We will give equal consideration to oral 

and written comments. 

Peer Review 

In accordance with our policy on peer 

review, published on July 1, 1994 (59 

FR 34270), we will provide copies of 

this proposed rule to three appropriate 

and independent specialists in order to 

solicit comments on the scientific data 

and assumptions relating to the 

supportive biological and ecological 

information for this proposed NEP 

designation. The purpose of such review 

is to ensure that the proposed NEP 

designation is based on the best 

scientific information available. We will 

invite these peer reviewers to comment 

during the public comment period and 

will consider their comments and 

information on this proposed rule 

during preparation of a final 

determination. 

Required Determinations 

Regulatory Planning and Review (E.O. 

12866) 

In accordance with the criteria in 

Executive Order 12866, this proposed 


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50924 Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / Proposed Rules 

rule to designate NEP status for the Rio 

Grande silvery minnow in the Big Bend 

reach of the Rio Grande, Texas, 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. Therefore, a cost-benefit 

and economic analysis is not required. 

We do not expect this rule to have 

significant impacts to existing human 

activities (e.g., agricultural activities, 

ranching, grazing, salt cedar and giant 

river cane control, forestry, fishing, 

boating, wading, swimming, trapping) 

in the watershed. The reestablishment 

of this 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 reestablishment of this species 

would conflict with existing or 

proposed human activities or hinder 

public use of the Big Bend reach of the 

Rio Grande 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 

National Park Service and the 

International Boundary and Water 

Commission. Both Federal agencies 

support the reestablishment. Because of 

the substantial regulatory relief 

provided by the NEP designation, we 

believe the reestablishment of the Rio 

Grande silvery minnow in the areas 

described would 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 the Big Bend 

reach of the Rio Grande or its tributaries 

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. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996; 5 U.S.C. 601 et seq., 

whenever a Federal agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare, and make available for public 

comment, a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

SBREFA amended the Regulatory 

Flexibility Act to require Federal 

agencies to provide a statement of the 

factual basis for certifying that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities. We are certifying that this rule 

will not have a significant economic 

effect on a substantial number of small 

entities. The following discussion 

explains our rationale. 

The area that would be affected if this 

proposed rule is adopted includes the 

Big Bend reach of the Rio Grande in 

Texas. Because of the substantial 

regulatory relief provided by NEP 

designations, we do not expect this rule 

to have any significant effect on 

recreational, agricultural, or 

development activities within the NEP 

area. In addition, when NEPs are located 

outside a National Wildlife Refuge or 

unit of the National Park System, 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)(1) requires 

Federal agencies to use their authorities 

to carry out programs to further the 

conservation of listed species. 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 

proposed species. The results of a 

conference are advisory in nature and 

do not restrict agencies from carrying 

out, funding, or authorizing activities. 

If finalized, this rule would authorize 

incidental take of Rio Grande silvery 

minnows within the NEP area. The 

regulations implementing the Act define 

‘‘incidental take’’ as take that is 

incidental to, and not the purpose of, 

the carrying out of an otherwise lawful 

activity such as military training, 

livestock grazing, recreation, and other 

activities that are in accordance with 

Federal, Tribal, State, and local laws 

and regulations. Intentional take for 

purposes other than authorized data 

collection would not be permitted. 

Intentional take for research or 

educational purposes would require a 

section 10 recovery permit under the 

ESA. 

This action would not affect 

recreational fishing or conservation 

actions, including removal of nonnative 

vegetation along the Rio Grande, such as 

salt cedar and giant river cane. The 

principal activities on private property 

near the NEP are agriculture, ranching, 

and recreation. We believe the presence 

of the Rio Grande silvery minnow 

would not affect the use of lands for 

these purposes because there would be 

no new or additional economic or 

regulatory restrictions imposed upon 

States, non-federal entities, or members 

of the public due to the presence of the 

Rio Grande silvery minnow and Federal 

agencies would only have to comply 

with sections 7(a)(2) and 7(a)(4) of the 

ESA. Therefore, this rulemaking is not 

expected to have any significant adverse 

impacts to recreation, agriculture, or any 

development activities. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.): 

1. On the basis of information 

contained in the ‘‘Required 

Determinations’’ section above, this rule 

will not ‘‘significantly or uniquely’’

affect small governments. We have 

determined and certify pursuant to the 

Unfunded Mandates Reform Act, 2 

U.S.C. 1502 et seq., that this proposed 

rulemaking will not impose a cost of 

$100 million or more in any given year 

on local or State governments or private 

entities. A Small Government Agency 

Plan is not required. As explained 

above, small governments would not be 

affected because the proposed NEP 

designation will not place additional 

requirements on any city, county, or 

other local municipalities. 

2. This rule will not produce a 

Federal mandate of $100 million or 

greater in any year (i.e., it is not a 

‘‘significant regulatory action’’ under 

the Unfunded Mandates Reform Act). 

This proposed NEP designation for the 

Rio Grande silvery minnow would not 

impose any additional management or 

protection requirements on the States or 

other entities. 

Takings (E.O. 12630) 

In accordance with Executive Order 

12630, the proposed rule does not have 

significant takings implications. When 

reestablished populations of federally 

listed species are designated as NEPs, 

the ESA’s regulatory requirements 


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regarding the reestablished listed 

species within the NEP are significantly 

reduced. Section 10(j) of the ESA can 

provide regulatory relief with regard to 

the taking of reestablished species 

within an NEP area. For example, this 

rule would allow for the taking of 

reestablished Rio Grande silvery 

minnows when such take is incidental 

to an otherwise legal activity, such as 

recreation (e.g., fishing, boating, wading, 

trapping, swimming), forestry, 

agriculture, salt cedar and giant river 

cane control, 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 reestablishment of this 

fish would conflict with existing or 

proposed human activities or hinder 

public use of the Big Bend reach of the 

Rio Grande and its tributaries. 

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 would 

substantially advance a legitimate 

government interest (conservation and 

recovery of a listed fish species) and 

would not present a barrier to all 

reasonable and expected beneficial use 

of private property. 

Federalism (E.O. 13132) 

In accordance with Executive Order 

13132, we have considered whether this 

proposed rule has significant 

Federalism effects and have determined 

that a Federalism assessment is not 

required. This rule would not have 

substantial direct effects on the States, 

on the relationship between the Federal 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. In keeping with 

Department of the Interior policy, we 

requested information from and 

coordinated development of this 

proposed rule with the affected resource 

agencies in Texas. Achieving the 

recovery goals for this species would 

contribute to its eventual delisting and 

its return to State management. No 

intrusion on State policy or 

administration is expected; roles or 

responsibilities of Federal or State 

governments would not change; and 

fiscal capacity would not be 

substantially directly affected. The 

special rule operates to maintain the 

existing relationship between the State 

and the Federal Government and is 

being undertaken in coordination with 

the State of Texas. Therefore, this rule 

does not have significant Federalism 

effects or implications to warrant the 

preparation of a Federalism Assessment 

under the provisions of Executive Order 

13132. 

Civil Justice Reform (E.O. 12988) 

In accordance with Executive Order 

12988 (February 7, 1996; 61 FR 4729), 

the Office of the Solicitor has 

determined that this rule would not 

unduly burden the judicial system and 

would meet 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. The Office 

of Management and Budget has 

approved our collection of information 

associated with reporting the taking of 

experimental populations (50 CFR 

17.84(p)(6)) and assigned control 

number 1018–0095. We may not collect 

or sponsor, and you are not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. 

National Environmental Policy Act 

We have prepared a draft EA as 

defined under the authority of the 

National Environmental Policy Act of 

1969. It is available from the Austin 

Ecological Services Field Office (see 

ADDRESSES section) and from our Web 

site at http://www.fws.gov/southwest/es/ 

Library/. We published a notice of intent 

to prepare an EA and a notice of public 

scoping meetings in the August 3, 2005, 

Federal Register (70 FR 44681). 

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 22951), 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 because there is no tribal land 

within the NEP. 

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. 

Because this action is not a significant 

energy action, 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 

proposed rule easier to understand 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical language or jargon that 

interferes with its clarity? (3) Does the 

format of the proposed rule (grouping 

and order of sections, use of headings, 

paragraphing, etc.) aid or reduce its 

clarity? (4) Would the proposed rule be 

easier to understand if it were divided 

into more (but shorter) sections? (5) Is 

the description of the proposed rule in 

the Supplementary Information section 

of the preamble helpful in 

understanding the proposed rule? What 

else could we do to make the proposed 

rule easier to understand? Send your 

comments concerning how we could 

make this proposed 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. 

References Cited 

A complete list of all references cited 

in this proposed rule is available upon 

request from the Austin Ecological 

Services Field Office (see ADDRESSES

section). 

Authors 

The primary authors of this proposed 

rule are staff of the Austin Ecological 

Services Field Office (see ADDRESSES

section). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

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: 


rfrederick on PROD1PC67 with PROPOSALS
50926 Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / Proposed Rules 

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 

entry for ‘‘Minnow, Rio Grande silvery’’

under ‘‘FISHES’’ in the List of 

Endangered and Threatened Wildlife 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

* * * * * * * 

Minnow, Rio Grande 

silvery.

Hybognathus 

amarus.

U.S.A. (NM, TX), 

Mexico.

Entire, except where 

listed as an experimental population.

E 543 17.95(e) NA 

Minnow, Rio Grande 

silvery.

Hybognathus 

amarus.

U.S.A. (NM, TX), 

Mexico.

Rio Grande, from 

Little Box Canyon 

(approximately 

10.4 river miles 

downstream of Ft. 

Quitman, TX) to 

Amistad Dam and 

the nearby railroad bridge; and 

on the Pecos 

River, from its 

confluence with 

Independence 

Creek to its confluence with the 

Rio Grande.

XN .................... NA 17.84(u) 

* * * * * * * 

3. Amend § 17.84 by adding a new 

paragraph (u) to read as follows: 

§ 17.84 Special rules—vertebrates. 

* * * * * 

(u) Rio Grande silvery minnow 

(Hybognathus amarus). 

(1) Where are populations of this fish 

designated as nonessential 

experimental populations (NEP)? 

(i) The NEP area for the Rio Grande 

silvery minnow is within the species’

historic range and is defined as follows: 

Rio Grande, from Little Box Canyon 

downstream of Ft. Quitman, Hudspeth 

County, Texas, through Big Bend 

National Park and the Rio Grande Wild 

and Scenic River, to Amistad Dam and 

the nearby railroad bridge; and on the 

Pecos River, from its confluence with 

Independence Creek to its confluence 

with the Rio Grande. 

(ii) The Rio Grande silvery minnow is 

not currently known to exist in the Rio 

Grande or Pecos River in Texas. Based 

on the habitat requirements of this fish, 

we do not expect it to become 

established outside the NEP area. 

However, if any individuals of this 

species move upstream or downstream 

or into tributaries outside the designated 

NEP area, we would presume that they 

came from the reestablished 

populations. We would then amend 

paragraph (u)(1)(i) of this section to 

enlarge the boundaries of the NEP to 

include the entire range of the expanded 

population. 

(iii) We do not intend to change the 

NEP designation to ‘‘essential 

experimental,’’ ‘‘threatened,’’ or 

‘‘endangered’’ within the NEP area. 

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 is allowed of this 

species in the NEP area? 

(i) A Rio Grande silvery minnow may 

be taken within the NEP area, provided 

that such take is not willful, knowing, 

or due to negligence, or 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), agriculture, and 

other activities that are in accordance 

with Federal, State, and local laws and 

regulations; and provided that such 

taking is reported within 24 hours, as 

provided under paragraph (u)(2)(iii) of 

this section. 

(ii) Any person with a valid permit 

issued by the U.S. Fish and Wildlife 

Service (Service) under 50 CFR 17.32 

may take Rio Grande silvery minnows 

for educational purposes, scientific 

purposes, the enhancement of 

propagation or survival of the species, 

zoological exhibition, and other 

conservation purposes consistent with 

the Endangered Species Act (ESA); 

(iii) Any taking pursuant to paragraph 

(u)(2)(i) or (ii) of this section must be 

reported within 24 hours by contacting 

the Service, Austin Ecological Services 

Field Office, 107011 Burnet Road, Suite 

200, Austin, TX 78758; (512) 490–0057. 

Once the Service is contacted, a 

determination will be made as to the 

disposition of any live or dead 

specimens. 

(3) What take of this species is not 

allowed in the NEP area? 

(i) Except as expressly allowed in 

paragraph (u)(2) of this section, all the 

provisions of 50 CFR 17.31(a) and (b) 

apply to the fish identified in paragraph 

(u)(1) of this section. 

(ii) Any manner of take not described 

under paragraph (u)(2) of this section is 

prohibited in the NEP area. 

(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 (u)(3) of this section or in 


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Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / Proposed Rules 50927 

violation of the applicable State or local 

fish and wildlife laws or regulations or 

the ESA. 

(iv) You may not attempt to commit, 

solicit another to commit, or cause to be 

committed any offense defined in 

paragraph (u)(3) of this section. 

(4) How will the effectiveness of the 

re-establishment be monitored? After 

the initial stocking of this fish, we will 

monitor their presence or absence at 

least annually and document any 

spawning behavior or young-of-year fish 

that might be present. Depending on 

available resources, monitoring may 

occur more frequently, especially during 

the first few years of re-establishment 

efforts. This monitoring will be 

conducted primarily by seining and will 

be accomplished by Service, National 

Park Service, or State employees or by 

contracting with the appropriate species 

experts. Annual reports will be 

produced detailing stocking and 

monitoring activities that took place 

during the previous year. 

(5) The Service will also fully 

evaluate these re-establishment efforts 

every 5 years to determine whether to 

continue or terminate them. 

(6) Note: Map of the proposed NEP 

area for the Rio Grande silvery minnow 

in Texas: 

BILLING CODE 4310–55–P 


rfrederick on PROD1PC67 with PROPOSALS
50928 Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / Proposed Rules 


rfrederick on PROD1PC67 with PROPOSALSEP05SE07.013</GPH>
Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / Proposed Rules 50929 

Dated: August 15, 2007. 

Mitchell Butler, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 07–4286 Filed 9–4–07; 8:45 am] 

BILLING CODE 4310–55–C 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU37; RIN 1018–AU91 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Marbled Murrelet 

(Brachyramphus marmoratus, 

Designation of Critical Habitat for the 

Northern Spotted Owl (Strix 

occidentalis caurina), Draft Recovery 

Plan for the Northern Spotted Owl 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Reopening of comment periods 

for two proposed revised critical habitat 

rules and a draft recovery plan. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of comment periods for three 

actions that are being promulgated 

under the Endangered Species Act of 

1973, as amended (Act): (1) A proposed 

revision of critical habitat for the 

marbled murrelet (Brachyramphus 

marmoratus) and its associated draft 

economic analysis; (2) a proposed 

revision of critical habitat for the 

northern spotted owl (Strix occidentalis 

caurina); and (3) the development of a 

recovery plan for the northern spotted 

owl. In order to provide a combined 

comment period for these three actions, 

we are reopening the comment periods 

to allow additional time for interested 

parties to comment on any or all of 

these actions. Comments previously 

submitted need not be resubmitted as 

they are already part of the public 

record and will be fully considered in 

preparation of any critical habitat rule(s) 

and the recovery plan. 

DATES: We will accept public comments 

on any of the above actions until 

October 5, 2007. 

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials by any one of several methods: 

1. By mail or hand-delivery to Patrick 

Sousa, Chief, Endangered Species, U.S. 

Fish and Wildlife Service, Ecological 

Services, Pacific Regional Office, 911 

NE. 11th Avenue, Portland, OR 97232. 

2. By electronic mail (e-mail) to: owlmurrelet@fws.gov. Please see the Public 

Comments Solicited section below for 

other information about electronic 

filing. 

3. By fax to: the attention of Patrick 

Sousa at (503) 231–6243. 

4. Via the Federal eRulemaking Portal 

at: http://www.regulations.gov. Follow 

the instructions for submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Patrick Sousa, Chief, Endangered 

Species, Pacific Regional Office, U.S. 

Fish and Wildlife Service, Ecological 

Services, 911 NE. 11th Avenue, 

Portland, OR 97232 (telephone: 503–

231–6158; facsimile: 503–231–6243). If 

you use a telecommunications device 

for the deaf (TDD), call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We solicit comments on the following 

three actions: 

(1) Our proposal to revise currently 

designated critical habitat for the 

marbled murrelet published in the 

Federal Register on September 12, 2006 

(71 FR 53838), and on our associated 

draft economic analysis of the proposed 

revision that was made available on 

June 26, 2007 (72 FR 35025); 

(2) Our proposal to revise currently 

designated critical habitat for the 

northern spotted owl published in the 

Federal Register on June 12, 2007 (72 

FR 32450); and 

(3) Our draft recovery plan for the 

northern spotted owl announced in the 

Federal Register on April 26, 2007 (72 

FR 20865), including the associated peer 

review. 

We will consider information and 

recommendations from all interested 

parties. For the marbled murrelet and 

northern spotted owl proposed revised 

critical habitat rules, we particularly 

seek comments concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including whether 

the benefits of designation would 

outweigh threats to the species caused 

by designation such that the designation 

of critical habitat is prudent; 

(2) Specific information on the 

amount and distribution of marbled 

murrelet and/or northern spotted owl 

habitat, what areas occupied at the time 

of listing that contain features essential 

to the conservation of the species 

should be included in the revised 

designation and why, and what areas 

not occupied at the time of listing are 

essential to the conservation of the 

species and why; 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

revised critical habitat; 

(4) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

revised designation, and in particular, 

any impacts on small entities, and the 

benefits of including or excluding areas 

that exhibit these impacts; 

(5) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments; and 

(6) Whether the benefits of exclusion 

in any particular area outweigh the 

benefits of inclusion under section 

4(b)(2) of the Act. 

For the proposed marbled murrelet 

critical habitat revision, we are also 

interested in comments on the draft 

economic analysis, including: 

(1) The extent to which the 

description of economic impacts in the 

draft economic analysis is complete and 

accurate; 

(2) The likelihood of adverse social 

reactions to the designation of revised 

critical habitat, as discussed in the draft 

economic analysis, and how the 

consequences of such reactions, if likely 

to occur, would relate to the 

conservation and regulatory benefits of 

the proposed revised critical habitat 

designation; and 

(3) Economic data on the incremental 

effects that would result from 

designating any particular area as 

revised critical habitat, since it is our 

intent to include the incremental costs 

attributed to the revised critical habitat 

designation in the final economic 

analysis. 

A draft economic analysis of the 

proposed revision of critical habitat for 

the northern spotted owl is not yet 

available. Public comment will be 

solicited separately at the time the 

availability of a draft economic analysis 

for the proposed northern spotted owl 

critical habitat revision is published in 

the Federal Register. 

For the draft recovery plan for the 

northern spotted owl, we particularly 

seek comments concerning: 

(1) The methods used to determine 

desired habitat percentages listed in 

Recovery Criterion 4. If 

recommendations are offered, 

respondents are asked to explain the 

scientific foundation supporting their 

comments; 

(2) The biological need, design and 

feasibility of attempting to provide 

connectivity between the Olympic 

Peninsula and central Washington 

northern spotted owl populations; 


rfrederick on PROD1PC67 with PROPOSALS