20792 Federal Register / Vol. 65, No. 75 / Tuesday, April 18, 2000 / Proposed Rules

PART 1827—PATENTS, DATA, AND

COPYRIGHTS

2. Revise section 1827.406–70 to read

as follows:

1827.406–70 Reports of work.

(a) When considered necessary for

monitoring contract performance,

contracting officers must require

contractors to furnish reports of work

performed under research and

development contracts (fixed-price and

cost reimbursement), interagency

agreements, or in cost-reimbursement

supply contracts. This purpose may be

achieved by including the following

general requirements, modified as

needed to meet the particular

requirements of the contract, in the

section of the contract specifying data

delivery requirements:

(1) Monthly progress reports. Reports

should be in narrative form, brief, and

informal. They should include a

quantitative description of progress, an

indication of any current problems that

may impede performance, proposed

corrective action, and a discussion of

the work to be performed during the

next monthly reporting period.

(Normally, this requirement should not

be used in contracts with nonprofit

organizations.)

(2) Quarterly progress reports. In

addition to factual data, these reports

should include a separate analysis

section interpreting the results obtained,

recommending further action, and

relating occurrences to the ultimate

objectives of the contract. Sufficient

diagrams, sketches, curves,

photographs, and drawings should be

included to convey the intended

meaning.

(3) Final report. This report should

summarize the results of the entire

contract, including recommendations

and conclusions based on the

experience and results obtained. The

final report should include tables,

graphs, diagrams, curves, sketches,

photo graphs, and drawings in sufficient

detail to explain comprehensively the

results achieved under the contract. The

final report must comply with NPG

2200.2A, Guidelines for Documentation,

Approval, and Dissemination of NASA

Scientific and Technical Information.

(4) Report Documentation Page. The

final report must include a completed

Report Documentation Page, Standard

Form (SF) 298 as the final page of the

report.

(b) The contracting officer must

consider the desirability of providing

reports on the completion of significant

units or phases of work, in addition to

periodic reports and reports on the

completion of the contract.

(c) Submission of Final Report. In

addition to the original of the final

report submitted to the contracting

officer, contracts containing the clause

at 1852.235–70, Center for AeroSpace

Information—Final Scientific and

Technical Reports (see 1835.070(a)),

must require the concurrent submission

of a reproducible copy and a printed or

reproduced copy of the final report to

the NASA Center for AeroSpace

Information (CASI).

(d) NASA Review of Final Report.

When required by the contract, final

reports submitted to NASA for review,

shall be reviewed for technical

accuracy, conformance with applicable

law, policy and publication standards,

and to determine the availability and

distribution of NASA-funded

documents containing scientific and

technical information (STI) (NASA

Form 1676, NASA Scientific and

Technical Document Availability

Authorization (DAA)). The final report

must not be released outside of NASA

until NASA’s DAA review has been

completed and the availability of the

document has been determined. The

document is considered available when

it is accessible through CASI.

PART 1835—RESEARCH AND

DEVELOPMENT CONTRACTING

3. In section 1835.070, revise

paragraph (a) to read as follows:

1835.070 NASA contract clauses and

solicitation provision.

(a) The contracting officer must insert

the clause at 1852.235–70, Center for

AeroSpace Information—Final

Scientific and Technical Reports, in all

research and development contracts,

interagency agreements, and in costreimbursement supply contracts

involving research and development

work.

* * * * *

PART 1852—SOLICITATION

PROVISIONS AND CONTRACT

CLAUSES

4. Revise section 1852.235–70 to read

as follows:

1852.235–70 Center for AeroSpace

Information—Final Scientific and Technical

Reports.

As prescribed in 1835.070(a), insert

the following clause:

Center for Aerospace Information—Final

Scientific and Technical Reports (XXX)

(a) The Contractor should register with and

avail itself of the services provided by the

NASA Center for AeroSpace Information

(CASI) (http://www.sti.nasa.gov) for the

conduct of research or research and

development required under this contract.

CASI provides a variety of services and

products as a central NASA repository of

research information, which may enhance

contract performance. The address is set out

in paragraph (d) of this clause.

(b) Should the CASI information or service

requested by the Contractor be unavailable or

not in the exact form necessary by the

Contractor, neither CASI nor NASA is

obligated to search for or change the format

of the information. A failure to furnish

information shall not entitle the Contractor to

an equitable adjustment under the terms and

conditions of this contract.

(c) In addition to the final report, as

defined at 1827.406–70(a)(3), submitted to

the contracting officer, a reproducible copy

and a printed or reproduced copy of the final

report or data shall be concurrently

submitted to: Center for AeroSpace

Information (CASI), Attn: Document

Processing Section, 7121 Standard Drive,

Hanover, Maryland 21076–1320, Phone: 301–

621–0390, FAX: 301–621–0134.

(d) The last page of the final report

submitted to CASI shall be a completed

Standard Form (SF) 298, Report

Documentation Page. In addition to the copy

of the final report, the contractor shall

provide, to CASI, a copy of the letter

transmitting the final report to NASA for its

Document Availability Authorization (DAA)

review.

(e) The contractor shall not release the final

report, outside of NASA, until the DAA

review has been completed by NASA and

availability of the report has been

determined.

(End of clause)

[FR Doc. 00–9555 Filed 4–17–00; 8:45 am]

BILLING CODE 7510–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG02

Endangered and Threatened Wildlife

and Plants; Proposed Rule To List the

Vermilion Darter as Endangered

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule and notice of

petition finding.

SUMMARY: We, the Fish and Wildlife

Service (Service), propose to list the

vermilion darter (Etheostoma

chermocki) as endangered under the

authority of the Endangered Species Act

of 1973, as amended (Act). The

vermilion darter is found only in 11.6

kilometers (7.2 miles) of the main-stem

of Turkey Creek, and the lowermost

reaches of Dry Creek and Beaver Creek,

Federal Register / Vol. 65, No. 75 / Tuesday, April 18, 2000 / Proposed Rules 20793

within the Turkey Creek drainage, a

tributary of the Locust Fork of the Black

Warrior River, northeast Jefferson

County, Alabama. Impoundments

within the upper mainstem of Turkey

Creek and its tributaries, along with

water quality degradation, have altered

the stream’s dynamics and reduced the

darter’s range significantly. The

surviving population is currently

threatened by pollutants (i.e., sediment,

nutrients, pesticide and fertilizer runoff)

that wash into the streams from the land

surfaces. Since the vermilion darter has

such a restricted range, it is also

threatened by potential catastrophic

events (e.g., toxic chemical spill). This

proposed rule, if made final, will extend

the protection of the Act to the

vermilion darter. We are seeking data

and comments from the public.

DATES: Comments from all interested

parties must be received by June 19,

2000. Requests for public hearings must

be received by June 2, 2000.

ADDRESSES: If you wish to comment,

you may submit your comments and

materials concerning this proposal by

any one of several methods. (1) You may

submit written comments to the Field

Supervisor, U.S. Fish and Wildlife

Service, Mississippi Field Office, 6578

Dogwood View Parkway, Jackson,

Mississippi 39213.

(2) You may send comments by e-mail

to danielldrennen@fws.gov. Please

submit these comments as an ASCII file

and avoid the use of special characters

and any form of encryption. Please also

include ‘‘Attn: [RIN number]’’ and your

name and return address in your e-mail

message. If you do not receive a

confirmation from the system that we

have received your e-mail message,

contact us directly at the above address

or by telephone at 601/965–4900.

(3) You may hand-deliver comments

to the above address. Comments and

materials received, as well as supporting

documentation used in the preparation

of this proposed rule, will be available

for public inspection, by appointment,

during normal business hours at the

above address.

FOR FURTHER INFORMATION CONTACT: Mr.

Daniel J. Drennen at the above address,

or telephone 601/965–4900; facsimile

601/965–4340.

SUPPLEMENTARY INFORMATION: 

Background

Boschung et al. (1992) formally

described the vermilion darter

(Etheostoma chermocki (Teleostei:

Percidae)) from the Black Warrior River

drainage of Alabama. This fish is a

medium-sized darter reaching about 7.1

centimeters (2.8 inches) total length

(length from tip of snout to longest

portion of tail fin) (Boschung et al. 1992,

Suttkus and Bailey 1993, Mettee et al.

1996). The vermilion darter belongs to

the subgenus Ulocentra (‘‘snub-nosed

darters’’), which includes fish that are

slightly laterally compressed, have

complete lateral lines, broadly

connected gill membranes, a short head,

and a small pronounced mouth. The

vermilion darter is distinguished by

extensive vermilion (reddish-orange)

pigmentation on the fins and body,

especially on the belly. Males have a

bright red spot on the membrane

between the first spines of the spinous

dorsal (upper) fin. During breeding, the

males have red blotches along the side

of the body (Boschung et al. 1992,

Suttkus and Baily 1993, and Metee et al.

1996). The female’s red spots are

smaller.

Currently, the vermilion darter is

found only in the Turkey Creek

drainage, a tributary of the Locust Fork

of the Black Warrior River, Jefferson

County, Alabama. The current range of

the vermilion darter is 11.6 kilometers

(km) (7.2 miles (mi)) of the mainstem of

Turkey Creek and the lowermost

reaches (0.8 km (0.5 mi) total) of Dry

and Beaver Creeks. Extensive surveys in

similar habitats have failed to locate this

species outside of its current drainage

(Boschung et al. 1992, Blanco et al.

1995, Mettee et al. 1996, Shepard et al.

1998, Blanco and Mayden 1999). The

Turkey Creek drainage is primarily

owned by private landowners, with only

approximately 1.6 km (1 mi) of stream

bank owned by Jefferson County.

The historic population size of the

vermilion darter within the Turkey

Creek drainage is unknown. In the

1960s and 1970s, the vermilion darter

was common at the Highway 79 bridge

site, which roughly bisects the fish’s

range, but by 1992, occurrences of the

darter had become very rare at that site

(Boschung et al. 1992; K. Marion,

University of Alabama in Birmingham,

pers. comm. 1998). Currently,

populations of vermilion darters are

meager and isolated within certain areas

of Turkey Creek, due to natural or

manmade barriers, like a waterfall and

several impoundments. Dispersal

beyond the current range of this species

is not likely (Blanco and Mayden 1997)

because of these barriers and increasing

point-source pollution (pollution

created from a single source, like sewage

effluent) and nonpoint-source pollution

(pollution created from larger processes

and not from one concentrated point

source, like excess sediment washing

into a stream after a rain). Blanco and

Mayden (1999) estimated the population

size at more than 1,800 individuals,

based on the number of vermilion

darters caught per fishing attempts and

amount of time within the Turkey Creek

mainstem and the tributaries of Dry and

Beaver Creeks.

Habitat for the vermilion darter is

similar to that of other snub-nosed

darters found in small to medium-sized

clear streams, with gravel riffles and

moderate currents (Kuehne and Barbour

1983, Etnier and Starnes 1993).

Boschung et al. (1992) described the

stream habitat for vermilion darters as 3

to 20 meters (m) (10 to 65 feet (ft)) wide,

0.01 to more than 0.5 m (0.03 to more

than 1.64 ft) in depth, with pools of

moderate current alternating with riffles

of moderately swift current, and low

water turbidity. Blanco and Mayden

(1999) found this species primarily in

areas dominated by fine gravel with

some coarse gravel or cobble. This

species is absent in habitats with only

a bedrock bottom, but has been found

on bedrock with sand and gravel.

Vermilion darters have been found in

habitats with consistent water velocity,

within run habitats (stream zones with

faster water), upstream at the foot of a

run, and in the transition zone between

a run/riffle (fast water) and pool (slow

water) habitat (Blanco and Mayden

1999). This species is generally not

found in deeper pool habitats.

Vermilion darters are associated with

aquatic vegetation such as Potamogeton

spp., Ceratophyllum spp., and

Myriophyllum spp. (Boshung et al.

1992). Vermilion darters are absent from

habitats immediately downstream of

impoundments and areas of pointsource pollution (Blanco and Mayden

1999).

The only known spawning habitat for

vermilion darters, at the confluence of

Turkey Creek and the runoff from

Tapawingo Springs (near the Highway

79 bridge), consists of a mixture of fine

silt on small gravel interspersed with

larger gravel, cobble, small boulders,

vegetation, and occasional filamentous

algae. Clean rock surfaces, as found

here, are necessary for egg laying (Stiles,

Samford University, Birmingham,

Alabama, pers. comm. 1999). There are

also small sticks and limbs on the

bottom substrate and within the water

column (Stiles, pers. comm. 1999). Little

is known about the life-history of the

vermilion darter; however, most

Ulocentra species live 2 to 3 years and

feed primarily on snails and aquatic

insects (Carlander 1997).

Previous Federal Action

We have been monitoring the status of

the species since the early 1990s and

have funded several status surveys

(Blanco et al. 1995 and Blanco and

20794 Federal Register / Vol. 65, No. 75 / Tuesday, April 18, 2000 / Proposed Rules

Mayden 1997). We received a petition to

emergency-list the vermilion darter as

endangered on July 23, 1998, from

Robert Reid, Jr., of Birmingham,

Alabama. On August 18, 1998, we

received supplemental information on

the species and a request to be

copetitioner from Dr. Paul Blanchard of

Samford University, Birmingham,

Alabama. The petition stated that the

vermilion darter was limited in range

and imminently threatened with

extinction. We found that the petition

presented substantial information

indicating that listing the species may

be warranted, but that emergency listing

was not warranted. We published a

notice announcing our 90-day finding

and initiation of the species’ status

review in the Federal Register on

January 26, 1999 (64 FR 3913).

Section 4(b)(3)(B) of the Act requires

that, for any petition to revise the Lists

of Endangered and Threatened Wildlife

and Plants that contains substantial

scientific and commercial information,

we make a finding within 12 months of

the date of the receipt of the petition, on

whether the action requested is (a) not

warranted, (b) warranted, or (c)

warranted but precluded from

immediate proposal by other pending

proposals of higher priority. This

proposed rule constitutes our 12-month

finding on the petitioned action.

The processing of this proposed rule

conforms with our Listing Priority

Guidance published in the Federal

Register on October 22, 1999 (64 FR

57114). The guidance clarifies the order

in which we will process rulemakings.

Highest priority is processing

emergency listing rules for any species

determined to face a significant and

imminent risk to its well-being (Priority

1). Second priority (Priority 2) is

processing final determinations on

proposed additions to the lists of

endangered and threatened wildlife and

plants. Third priority is processing new

proposals to add species to the lists. The

processing of administrative petition

findings (petitions filed under section 4

of the Act) is the fourth priority. The

processing of this proposed rule is a

Priority 3 action.

Summary of Factors Affecting the

Species

The procedures for adding species to

the Federal Lists are found in section 4

of the Act (16 U.S.C. 1531 et seq.) and

the accompanying regulations (50 CFR

part 424). A species may be determined

to be an endangered or a threatened

species due to one or more of the five

factors described in section 4(a)(1).

These factors and their application to

the vermilion darter (Etheostoma

chermocki Boschung) are as follows.

A. The Present or Threatened

Destruction, Modification, or

Curtailment of Its Habitat or Range

The primary threats to the vermilion

darter within the Turkey Creek

watershed are nonpoint-source

pollution and alteration of flow regimes.

Restricted and localized in range, the

vermilion darter is vulnerable to

human-induced impacts to its habitat,

such as siltation (excess sediments

suspended or deposited in a stream),

nutrification (excessive nutrients, such

as nitrogen and phosphorus, present),

and impoundments.

Excessive siltation renders the habitat

unsuitable for feeding and reproduction

of vermilion darters and associated fish

species. Sediment has been shown to

wear away and/or suffocate periphyton

(organisms that live attached to objects

underwater), disrupt aquatic insect

communities, and negatively impact

fish growth, survival, and reproduction

(Waters 1995). Sediment is the most

abundant pollutant produced in the

Mobile River Basin (Alabama

Department of Environmental

Management 1996). Potential sediment

sources within a watershed include

virtually all activities that disturb the

land surface. The amount and impact of

sedimentation on the vermilion darter’s

habitat may be locally correlated with

the land use practices such as

construction, urbanization, and

silviculture. Turkey Creek has been

noted to be brown-orange from sediment

and completely turbid after heavy to

even medium rainfalls (Blanchard pers.

comm. 1998). Four major soil types

occur within the Turkey Creek

watershed (Gorgas, Leesburg,

Montevallo, and Nauvoo), and all are

considered highly erodible due to the

steep topography (R. Goode, Natural

Resources Conservation Service,

Birmingham, Alabama, pers. comm.

1988). Urbanization has contributed

significantly to siltation within the

Turkey Creek watershed. The

approximately 91-square kilometer (sq

km) (35-square mile (sq mi)) Turkey

Creek watershed drains 22,149 hectares

(54,731 acres) of Jefferson County, the

most populous county in the State.

Blanchard et al. (1998) identified five

specific nonpoint-source siltation sites

that are currently impacting the Turkey

Creek watershed, including a major road

extension within 0.3 km (1,000 ft) of

Turkey Creek and four sites affecting

Beaver Creek, a major tributary to

Turkey Creek (i.e., a bridge, road and

sewer line construction, and a wood

pallet plant). A proposed expansion of

the Jefferson County landfill, if

implemented, would likely contribute to

increased sedimentation of Turkey

Creek.

Nutrification is a major problem in

Turkey Creek. Water quality data for

Turkey Creek taken between September

1996 and February 1997 upstream of the

Turkey Creek Waste Water Treatment

Plant (TCWWTP), located within the

range of the darter, showed high values

for conductivity (Blanco and Mayden

1999). Similarly, water quality data for

Turkey Creek taken along Turkey Creek

Road, also within the darter’s range, in

June 1997 indicated high values for

conductivity (Shepard et al. 1998). High

conductivity values are an indicator of

hardness and alkalinity and may denote

water nutrification (Hackney et al. 1992,

Tennessee Valley Authority 1992).

Domestic pollution (septic and grey

water) and excessive use of fertilizers

and pesticides on lawns and along

roadsides result in the concentration of

nutrients and toxic chemicals within

watersheds such as Turkey Creek.

Nutrification promotes heavy algal

growth that covers and eliminates clean

rock or gravel habitats necessary for

vermilion darter feeding and spawning.

Shepard et al. (1998) noted a thin veneer

of algae, indicating eutrophic conditions

(increased levels of nitrogen and

phosphorus) in Turkey Creek at the

town of Morris, downstream of the

range of the darter. Blanco et al. (1995)

also noted increased levels of

filamentous algae in Dry Creek and

above the Turkey Creek Falls, within the

range of the darter. The vermilion darter

habitat along Turkey Creek Road was

given a poor general index of biological

integrity score (a numerical evaluation

of the biological health of a stream) in

1997 because of domestic pollution

(Shepard et al. 1998).

The Alabama Department of

Environmental Management has

reported seven violations for the

TCWWTP between April 1995 and

March 1998 (Blanchard in litt. 1998).

These violations were for daily

maximum fecal coliform values of

almost 2 to 4 times more than permit

limits. With local human population

growing in the area, the TCWWTP is

expected to be at full capacity soon,

discharging 11,355 cubic meters per day

(3,000,000 gallons per day) (Blanchard,

pers. comm. 1999). A fish kill in Turkey

Creek in 1997 may have been caused by

raw sewage released into the creek

following a sewage line break and repair

(Moss 1997). Blanco and Mayden (1999)

attributed the absence of darters

immediately downstream of the

TCWWTP to chlorine in treated

wastewater overflows. However,

Federal Register / Vol. 65, No. 75 / Tuesday, April 18, 2000 / Proposed Rules 20795

chlorine sterilization of effluent

(wastewater outflows) was recently

replaced with ultraviolet light

sterilization.

There are six impoundments in

Turkey and Dry Creeks (i.e., Turkey

Creek Lakes, Shadow Lake, Strip-mine

Lake, Innsbrook Lake, Pinson Valley

High Pond, and Horse Ranch Pond)

(Blanco and Mayden 1999). These

impoundments serve as dispersal

barriers, affect water quality by reducing

water flow and concentrating pollutants,

and contribute to the isolation and

separation of the vermilion darter

populations (Blanco and Mayden 1999).

Blanco and Mayden (1999) noted a 40-

percent decline of vermilion darters

collected between 1995 and 1998 at two

sites directly affected by

impoundments. Population density

estimates, expressed as the number of

vermilion darters caught per fishing

attempts and vermilion darters caught

per amount of time spent fishing,

declined by approximately 42 percent

and 71 percent, respectively (Blanco

and Mayden 1997). However, since

historical population information is

unknown, Blanco and Mayden (1997)

were unclear if the decline represented

a long- or short-term decline. Blanco

and Mayden (1999) noted a 71-percent

decline of vermilion darter habitat

within the species’ 11.6-km (7.2-mi)

range in the Turkey Creek drainage

between 1995 and 1998. Approximately

8.2 km (5.1 mi) of the lost vermilion

darter habitat was associated with the

TCWWTP; two impoundments, a

housing development, and pond

dredging along Turkey Creek and Dry

Creek; and increased siltation due to

road maintenance along Beaver Creek

(Blanco et al. 1995, Blanco and Mayden

1997, Blanco and Mayden 1999).

B. Overutilization for Commercial,

Recreational, Scientific, or Educational

Purposes

In general, small species of fish such

as the vermilion darter, which are not

utilized for either sport or bait purposes,

are unknown to the general public.

However, listing the vermilion darter

may make it more attractive to collectors

through recognition of its rarity.

Vermilion darters are found in shallow

riffles and pools in restricted portions of

Turkey Creek. These areas are easily

accessible from public roads or bridges.

The darter is also sensitive to a variety

of easily obtained chemicals and

products. These factors would make

vandalism virtually undetectable and

uncontrollable. Collection for scientific

and educational purposes is not

currently identified as a threat, but it

must be regulated based on this species’

restricted range and deteriorating

habitat.

C. Disease or Predation

Disease or natural predators do not

present any known threats to the

vermilion darter. To the extent that

disease or predation occurs, these

factors become a more important

consideration as the total population

decreases in number.

D. The Inadequacy of Existing

Regulatory Mechanisms

No environmental laws require

persons to specifically consider the

vermilion darter or ensure that a project

will not jeopardize its continued

existence. The vermilion darter has been

designated an endangered species by

Alabama and is protected under

Alabama’s Nongame Species Regulation

220–2–.92–.90ER, which protects the

species from overcollecting. Application

of current State and Federal water

quality regulations have not adequately

protected the vermilion darter habitat

from point- and nonpoint-source

pollution.

E. Other Natural or Manmade Factors

Affecting Its Continued Existence

The current range of the vermilion

darter is restricted to localized sites

within the mainstem of Turkey Creek

and the lowermost reaches of Dry Creek

and Beaver Creek, within the Turkey

Creek drainage. Subsequently, genetic

diversity has likely declined due to

fragmentation, separation, and

destruction of vermilion darter

populations. Potential genetic variation

and diversity within a species are

essential for recovery, adaptation to

environmental change, and long-term

viability (capability to live, reproduce,

and develop) (Noss and Cooperrider

1994, Harris 1984). The long-term

viability of a species is founded on

conservation of numerous interbreeding

local populations throughout the range

of the species (Harris 1984).

Interbreeding populations of vermilion

darters are becoming increasingly

separated.

The limited distribution of the

vermilion darter makes populations

vulnerable to extirpation (elimination)

from catastrophic events such as an

accidental toxic chemical spill, heavy

pesticide or contaminant runoff,

increased siltation, vandalism, or

changes in flow regimes. A major

highway (State Highway 79) divides the

watershed. Eastward (upstream), the

watershed is experiencing rapid

residential and business growth; while

to the west (downstream), there are

numerous commercial, residential, and

reclaimed strip-mining sites.

We have carefully assessed the best

scientific and commercial information

available regarding the past, present,

and future threats faced by the

vermilion darter in determining to

propose this rule. Based on this

evaluation, the preferred action is to list

the vermilion darter as endangered. The

Act defines an endangered species as

one that is in danger of extinction

throughout all, or a significant portion,

of its range. A threatened species is one

that is likely to become endangered in

the foreseeable future throughout all or

a significant portion of its range.

Endangered status is appropriate for the

vermilion darter due to its occurrence as

isolated meager populations within a

very limited range, segmented by

barriers (i.e., impoundments). The

escalation of nonpoint-source pollution

from siltation and nutrification within

the species’ habitat further threatens

this species’ survival. Isolated

population segments are also subject to

declining genetic diversity, reducing

their chances for long-term viability.

The possibility for catastrophic events

(e.g., discharges, toxic chemical spills)

also poses a threat to the survival of the

vermilion darter.

Critical Habitat

Critical habitat is defined in section 3,

paragraph (5)(A) of the Act as the

specific areas within the geographical

area occupied by a species, at the time

it is listed in accordance with the Act,

on which are found those physical or

biological features essential to the

conservation of the species and that may

require special management

considerations or protection; and

specific areas outside the geographical

area occupied by a species at the time

it is listed in accordance with the

provisions of section 4 of the Act, upon

a determination by the Secretary that

such areas are essential for the

conservation of the species.

‘‘Conservation’’ means the use of all

methods and procedures needed to

bring the species to the point at which

listing under the Act is no longer

necessary.

Critical habitat designation directly

affects only Federal agency actions

through consultation under section

7(a)(2) of the Act. Section 7(a)(2)

requires Federal agencies to ensure that

activities they authorize, fund, or carry

out are not likely to jeopardize the

continued existence of a listed species

or destroy or adversely modify its

critical habitat.

Section 4(a)(3) of the Act, as

amended, and implementing regulations

20796 Federal Register / Vol. 65, No. 75 / Tuesday, April 18, 2000 / Proposed Rules

(50 CFR 424.12) require that, to the

maximum extent prudent and

determinable, we designate critical

habitat at the time the species is

determined to be endangered or

threatened. Our regulations (50 CFR

424.12(a)(1)) state that designation of

critical habitat is not prudent when one

or both of the following situations

exist—(1) the species is threatened by

taking or other activity and the

identification of critical habitat can be

expected to increase the degree of threat

to the species or (2) such designation of

critical habitat would not be beneficial

to the species.

We propose that critical habitat is

prudent for the vermilion darter. In the

last few years, a series of court decisions

have overturned Service determinations

regarding a variety of species that

designation of critical habitat would not

be prudent (e.g., Natural Resources

Defense Council v. U.S. Department of

the Interior 113 F. 3d 1121 (9th Cir.

1997); Conservation Council for Hawaii

v. Babbitt, 2 F. Supp. 2d 1280 (D.

Hawaii 1998)). Based on the standards

applied in those judicial opinions, we

believe that the designation of critical

habitat for this species would be

prudent.

Due to the small number of

populations, the vermilion darter is

vulnerable to unrestricted collection,

vandalism, or other disturbance. We

remain concerned that these threats

might be exacerbated by the publication

of critical habitat maps and further

dissemination of locational information.

However, we have examined the

evidence available and have not found

specific evidence of taking, vandalism,

collection, or trade of this species or any

similarly situated species.

Consequently, consistent with

applicable regulations (50 CFR

424.12(a)(1)(i)) and recent case law, we

do not expect that the identification of

critical habitat will increase the degree

of threat to this species of taking or

other human activity.

In the absence of a finding that critical

habitat would increase threats to a

species, if any benefits would result

from critical habitat designation, then a

prudent finding is warranted. In the

case of this species, designation of

critical habitat may provide some

benefits. The primary regulatory effect

of critical habitat is the section 7

requirement that Federal agencies

refrain from taking any action that

destroys or adversely modifies critical

habitat. While a critical habitat

designation for habitat currently

occupied by this species would not be

likely to change the section 7

consultation outcome because an action

that destroys or adversely modifies such

critical habitat would also be likely to

result in jeopardy to the species, in

some instances, section 7 consultation

might be triggered only if critical habitat

is designated. Examples could include

unoccupied habitat or occupied habitat

that may become unoccupied in the

future. Some educational or

informational benefits may result from

designating critical habitat. Therefore,

we find that critical habitat is prudent

for the vermilion darter.

As explained in detail in the Final

Listing Priority Guidance for FY2000

(64 FR 57114), our listing budget is

currently insufficient to allow us to

immediately complete all of the listing

actions required by the Act. We

anticipate in FY 2000 and beyond giving

higher priority to critical habitat

designation, including designations

deferred pursuant to the Final Listing

Priority Guidance for FY2000, such as

the designation for this species, than we

have in recent fiscal years. We plan to

employ a priority system for deciding

which outstanding critical habitat

designations should be addressed first.

We will focus our efforts on those

designations that will provide the most

conservation benefit, taking into

consideration the efficacy of critical

habitat designation in addressing the

threats to the species, and the

magnitude and immediacy of those

threats. Deferral of the critical habitat

designation for this species will allow

us to concentrate our limited resources

on higher priority critical habitat and

other listing actions, while allowing us

to put in place protections needed for

the conservation of the vermilion darter

without further delay. We will make the

final critical habitat determination with

the final listing determination for the

vermilion darter. If this final critical

habitat determination is that critical

habitat designation is prudent, we will

develop a proposal to designate critical

habitat for this species as soon as

feasible, considering our workload

priorities.

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the Act include

recognition, recovery actions,

requirements for Federal protection, and

prohibitions against certain practices.

Recognition through listing encourages

and results in conservation actions by

Federal, State, and private agencies,

groups, and individuals. The Act

provides for possible land acquisition

and cooperation with the States and

requires that recovery actions be carried

out for all listed species. The protection

required of Federal agencies and the

prohibitions against taking and harm are

discussed, in part, below.

Section 7(a) of the Act, as amended,

requires Federal agencies to evaluate

their actions with respect to any species

that is proposed or listed as endangered

or threatened and with respect to its

critical habitat, if any is being

designated. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR part

402. Section 7(a)(4) of the Act requires

Federal agencies to confer informally

with us on any action that is likely to

jeopardize the continued existence of a

proposed species or result in

destruction or adverse modification of

proposed critical habitat. If a species is

subsequently listed, section 7(a)(2)

requires Federal agencies to ensure that

activities they authorize, fund, or carry

out are not likely to jeopardize the

continued existence of such a species or

to destroy or adversely modify its

critical habitat. If a Federal action may

affect a listed species or its critical

habitat, the responsible Federal agency

must enter into formal consultation with

us.

Federal activities that could occur and

impact the vermilion darter include, but

are not limited to, the carrying out or

the issuance of permits for reservoir

construction, stream alteration,

discharges, wastewater facility

development, water withdrawal

projects, pesticide registration, mining,

and road and bridge construction.

Activities affecting water quality may

also impact the vermilion darter and are

subject to the U.S. Army Corps of

Engineers’ and the U.S. Environmental

Protection Agency’s regulations and

permit requirements under the authority

of the Clean Water Act and the National

Pollutant Discharge Elimination System

(NPDES). It has been our experience,

however, that nearly all section 7

consultations have been resolved so that

species are protected and project

objectives are met.

Listing the vermilion darter provides

for the development and

implementation of a recovery plan for

the species. This plan will bring

together Federal, State, and regional

agency efforts for conservation of the

species. A recovery plan will establish

a framework for agencies to coordinate

their recovery efforts. It will also

describe the site-specific management

actions necessary to achieve

conservation and survival of the species.

The Act and its implementing

regulations, found at 50 CFR 17.21, set

forth a series of general prohibitions and

exceptions that apply to all endangered

wildlife. These prohibitions, in part,

Federal Register / Vol. 65, No. 75 / Tuesday, April 18, 2000 / Proposed Rules 20797

make it illegal for any person subject to

the jurisdiction of the United States to

take (includes harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture,

collect, or to attempt any such conduct),

import or export, ship in interstate

commerce in the course of commercial

activity, or sell or offer for sale in

interstate or foreign commerce any

endangered wildlife species. It is also

illegal to possess, sell, deliver, carry,

transport, or ship any such wildlife that

has been taken illegally. Certain

exceptions apply to our agents and

agents of State conservation agencies.

Our policy, published in the Federal

Register on July 1, 1994 (59 FR 34272),

is to identify, to the maximum extent

practicable, those activities that would

or would not constitute a violation of

section 9 of the Act if this species is

listed. The intent of this policy is to

increase public awareness as to the

effects of the listing on future and

ongoing activities within a species’

range.

If the species is listed, we believe the

following would not be likely to result

in a violation of section 9:

(1) Existing discharges into waters

supporting this species, which require

Federal authorization or permits (e.g.,

activities subject to sections 402, 404,

and 405 of the Clean Water Act and

discharges regulated under the NPDES),

provided such discharges are in

compliance with an incidental take

statement and any reasonable and

prudent measures issued pursuant to a

consultation conducted in accordance

with section 7 of the Act;

(2) Normal agricultural and

silvicultural practices, including

pesticide and herbicide use, that are

carried out in accordance with any

existing regulations, permit and label

requirements, and best management

practices;

(3) Development and construction

activities designed and implemented

pursuant to State and local water quality

regulations and implemented using best

management practices;

(4) Existing recreational activities

such as swimming, wading, canoeing,

and fishing; and

(5) Lawful commercial and sport

fishing.

Activities that we believe could

potentially result in a violation of

section 9 of the Act, if the vermilion

darter was listed, include, but are not

limited to:

(1) The unauthorized collection or

capture of this species;

(2) Unauthorized destruction or

alteration of the species’ habitat (e.g.,

unpermitted instream dredging,

channelization, and discharge of fill

material);

(3) Violation of any discharge or water

withdrawal permit having an effect on

vermilion darter habitat;

(4) Illegal discharge or dumping of

toxic chemicals or other pollutants into

waters supporting the vermilion darter;

and

(5) Use of pesticides and herbicides in

violation of label restrictions within the

species’ watershed.

We will review other activities not

identified above on a case-by-case basis

to determine if a violation of section 9

of the Act may be likely to result from

such activity should the vermilion

darter become listed. We do not

consider these lists to be exhaustive and

provide them as information to the

public.

Questions regarding whether specific

activities may constitute a violation of

section 9 should be directed to the Field

Supervisor of our Mississippi Field

Office (see ADDRESSES section).

We may issue permits to carry out

otherwise prohibited activities

involving endangered wildlife species

under certain circumstances.

Regulations governing permits are at 50

CFR 17.22 and 17.23. Such permits are

available for scientific purposes, to

enhance the propagation or survival of

the species, for incidental take in

connection with otherwise lawful

activities, and/or economic hardship.

Requests for copies of the regulations

and inquiries about prohibitions and

permits may be addressed to the U.S.

Fish and Wildlife Service, Ecological

Services Division, 1875 Century Blvd.,

Atlanta, GA, 30345 (telephone 404/679–

7313; facsimile 404/679–7081).

Public Comments Solicited

We intend that any final action

resulting from this proposal will be as

accurate and as effective as possible.

Therefore, we request comments or

suggestions from the public, other

concerned governmental agencies, the

scientific community, industry, or any

other interested party concerning this

proposed rule. We particularly seek

comments concerning:

(1) Biological, commercial trade, or

other relevant data concerning any

threat (or lack thereof) to this species;

(2) The location of any additional

populations of this species and the

reasons why any habitat should or

should not be determined to be critical

habitat as provided by section 4 of the

Act;

(3) Additional information concerning

the range, distribution, and population

size of this species; and

(4) Current or planned activities in the

subject area and their possible impacts

on this species.

We will take into consideration any

comments and additional information

received on this species when making a

final determination regarding this

proposal. Our practice is to make

comments, including names and home

addresses of respondents, available for

public review during regular business

hours. Individual respondents may

request that we withhold their home

address from the rulemaking record,

which we will honor to the extent

allowable by law. There also may be

circumstances in which we would

withhold from the rulemaking record a

respondent’s identity, as allowable by

law. If you wish us to withhold your

name and/or address, you must state

this prominently at the beginning of

your comment. However, we will not

consider anonymous comments. We

will make all submissions from

organizations or businesses, and from

individuals identifying themselves as

representatives or officials of

organizations or businesses, available

for public inspection in their entirety.

In accordance with interagency policy

published on July 1, 1994 (59 FR

34270), upon publication of this

proposed rule in the Federal Register,

we will solicit expert reviews by at least

three specialists regarding pertinent

scientific or commercial data and

assumptions relating to the taxonomic,

biological, and ecological information

for the vermilion darter. The purpose of

such a review is to ensure that listing

decisions are based on scientifically

sound data, assumptions, and analyses,

including the input of appropriate

experts. We will summarize the

opinions of these reviewers in the final

decision document. The final

determination may differ from this

proposal based upon the information we

receive.

You may request a public hearing on

this proposal. Your request for a hearing

must be made in writing and filed

within 45 days of the date of publication

of this proposal in the Federal Register.

Address your requests to the Field

Supervisor (see ADDRESSES section).

Executive Order 12866

Executive Order 12866 requires each

agency to write regulations that are easy

to understand. We invite your

comments on how to make this rule

easier to understand including answers

to the following: (1) Are the

requirements of the rule clear? (2) Is the

discussion of the rule in the

Supplementary Information section of

the preamble helpful to understanding

20798 Federal Register / Vol. 65, No. 75 / Tuesday, April 18, 2000 / Proposed Rules

the rule? (3) What else could we do to

make the rule easier to understand?

National Environmental Policy Act

We have determined that an

environmental assessment and

environmental impact statement, as

defined under the authority of the

National Environmental Policy Act of

1969, need not be prepared in

connection with regulations adopted

pursuant to section 4(a) of the Act. We

published a notice outlining our reasons

for this determination in the Federal

Register on October 25, 1983 (48 FR

49244).

Paperwork Reduction Act

This rule does not contain any new

collections of information other than

those already approved under the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq., and assigned Office of

Management and Budget clearance

number 1018–0094. An agency may not

conduct or sponsor, and a person is not

required to respond to, a collection of

information unless it displays a

currently valid control number. For

additional information concerning

permit and associated requirements for

endangered species, see 50 CFR 17.22.

References Cited

A complete list of all references cited

in this document, as well as others, is

available upon request from the Field

Supervisor (see ADDRESSES section).

Author

The primary author of this document

is Daniel J. Drennen (see ADDRESSES

section) (601/965–4900).

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 follows:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500, unless otherwise noted.

2. Amend section 17.11(h) by adding

the following to the List of Endangered

and Threatened Wildlife, in alphabetical

order under FISHES:

§ 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

*******

Darter, vermilion ...... Etheostoma

chermocki.

U.S.A. (AL) ............. Entire ...................... E .................... NA NA

*******

Dated: April 5, 2000.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 00–9672 Filed 4–17–00; 8:45 am]

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