[Federal Register Volume 72, Number 171 (Wednesday, September 5, 2007)]
[Proposed Rules]
[Pages 50918-50929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4286]


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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.

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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: <a href="/cdn-cgi/l/email-protection#3d7c54505858626f525f584f4e52537d5b4a4e135a524b"><span class="__cf_email__" data-cfemail="2e6f47434b4b717c414c4b5c5d41406e48595d00494158">[email protected]</span></a>.
    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/.

[[Page 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

[[Page 50920]]

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 
Espa[ntilde]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

[[Page 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 self-sustaining 
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).

[[Page 50922]]

    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

[[Page 50923]]

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

[[Page 50924]]

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

[[Page 50925]]

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 e-mail your comments 
to: <a href="/cdn-cgi/l/email-protection#3e7b464d5b5d7e57514d105a515710595148"><span class="__cf_email__" data-cfemail="24615c574147644d4b570a404b4d0a434b52">[email protected]</span></a>.

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:


[[Page 50926]]


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

    2. Amend Sec.  17.11(h) by revising the 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                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Minnow, Rio Grande silvery.......  Hybognathus amarus..  U.S.A. (NM, TX),     Entire, except       E                       543     17.95(e)           NA
                                                          Mexico.              where listed as an
                                                                               experimental
                                                                               population.
Minnow, Rio Grande silvery.......  Hybognathus amarus..  U.S.A. (NM, TX),     Rio Grande, from     XN              ...........           NA     17.84(u)
                                                          Mexico.              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.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec.  17.84 by adding a new paragraph (u) to read as 
follows:


Sec.  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

[[Page 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

[[Page 50928]]

[GRAPHIC] [TIFF OMITTED] TP05SE07.013



[[Page 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


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