[Federal Register Volume 66, Number 111 (Friday, June 8, 2001)]
[Proposed Rules]
[Pages 30853-30860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14454]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF96


Endangered and Threatened Wildlife and Plants; Proposed 
Establishment of Nonessential Experimental Population Status for 4 
Fishes Into the Tellico River, From the Backwaters of Tellico Reservoir 
Upstream to Tellico River Mile 33, in Monroe County, Tennessee

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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[[Page 30854]]

SUMMARY: We, the Fish and Wildlife Service (Service), propose to 
reintroduce two federally listed endangered fishes--the duskytail 
darter (Etheostoma percnurum) and smoky madtom (Noturus baileyi)--and 
two federally listed threatened fishes--the yellowfin madtom (Noturus 
flavipinnis) and spotfin chub (=turquoise shiner) (Cyprinella 
(=Hybopsis) monacha)--into the Tellico River, between the backwaters of 
the Tellico Reservoir (approximately Tellico River mile (TRM) 19 (30.4 
kilometers (km))) and TRM 33 (52.8 km), near the Tellico Ranger 
Station, in Monroe County, Tennessee. These populations would be 
established as nonessential experimental populations (NEPs) in 
accordance with section 10(j) of the Endangered Species Act of 1973, as 
amended (Act). This area is identified as the proposed NEP Area. We 
would manage these populations under provisions of this special rule.

DATES: Comments must be received by August 7, 2001.

ADDRESSES: Send comments and information concerning this proposal to 
the State Supervisor, Asheville Field Office, U.S. Fish and Wildlife 
Service, 160 Zillicoa Street, Asheville, North Carolina 28801. Comments 
and materials received will be available for public inspection, by 
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. Richard G. Biggins at 828/258-
3939, ext. 228; facsimile 828/258-5330; or e-mail 
<a href="/cdn-cgi/l/email-protection#52203b313a3320360d303b35353b3c21123425217c353d24"><span class="__cf_email__" data-cfemail="a3d1cac0cbc2d1c7fcc1cac4c4cacdd0e3c5d4d08dc4ccd5">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    1. Legislative: Congress made significant changes to the Endangered 
Species Act of 1973, as amended (Act), with the addition of section 
10(j), which provides for the designation of specific reintroduced 
populations of listed species as ``experimental populations.'' 
Previously, we had authority to reintroduce populations into unoccupied 
portions of a listed species' historical range when doing so would 
foster the conservation and recovery of the species. However, local 
citizens often opposed these reintroductions because they were 
concerned about the placement of restrictions and prohibitions on 
Federal and private activities. Under section 10(j), the Secretary of 
the Department of the Interior can designate reintroduced populations 
established outside the species' current range, but within its 
historical range, as ``experimental.''
    Under the Act, species listed as endangered or threatened are 
afforded protection primarily through the prohibitions of section 9 and 
the requirements of section 7. Section 9 of the Act prohibits the take 
of a listed species. ``Take'' is defined by the Act as harass, harm, 
pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to 
engage in any such conduct. Section 7 of the Act outlines the 
procedures for Federal interagency cooperation to conserve federally 
listed species and protect designated critical habitats. It mandates 
all Federal agencies to determine how to use their existing authorities 
to further the purposes of the Act to aid in recovering listed species. 
It also states that Federal agencies will, in consultation with the 
Service, insure that any action they authorize, fund, or carry out is 
not likely to jeopardize the continued existence of a listed species or 
result in the destruction or adverse modification of designated 
critical habitat. Section 7 of the Act does not affect activities 
undertaken on private lands unless they are authorized, funded, or 
carried out by a Federal agency.
    Section 10(j) is designed to increase our flexibility in managing 
an experimental population by allowing us to treat the population as 
threatened, regardless of the species' designation elsewhere in its 
range. Threatened designation gives us more discretion in developing 
and implementing management programs and special regulations for such a 
population and allows us to develop any regulations we consider 
necessary to provide for the conservation of a threatened species. In 
situations where we have experimental populations, most of the section 
9 prohibitions that apply to threatened species no longer apply, and 
the special rule contains the prohibitions and exceptions necessary and 
appropriate to conserve that species. Regulations for NEPs may be 
developed to be more compatible with routine human activities in the 
reintroduction area.
    Based on the best available information, we must determine whether 
experimental populations are ``essential,'' or ``nonessential,'' to the 
continued existence of the species. An experimental population that is 
essential to the survival of the species is treated as a threatened 
species. An experimental population that is nonessential to the 
survival of the species is also treated as a threatened species. 
However, for section 7 interagency cooperation purposes, if the NEP is 
located outside of a National Wildlife Refuge or National Park, it is 
treated as a species proposed for listing.
    For the purposes of section 7 of the Act, in situations where there 
is a nonessential experimental population located within a National 
Wildlife Refuge or National Park (treated as threatened), section 
7(a)(1) and the consultation requirements of section 7(a)(2) of the Act 
would apply. Section 7(a)(1) requires all Federal agencies to use their 
authorities to conserve listed species. Section 7(a)(2) requires that 
Federal agencies consult with the Service before authorizing, funding, 
or carrying out any activity that would likely jeopardize the continued 
existence of a listed species or adversely modify its critical 
habitats. When NEPs are located outside a National Wildlife Refuge or 
National Park, only two provisions of section 7 would apply; section 
7(a)(1) and section 7(a)(4). In these instances, NEPs provide 
additional flexibility because Federal agencies are not required to 
consult with us under section 7(a)(2). Section 7(a)(4) requires Federal 
agencies to informally confer with the Service on actions that are 
likely to jeopardize the continued existence of a proposed species. 
However, since we determined that the NEP is not essential to the 
continued existence of the species, it is very unlikely that we would 
ever determine jeopardy for a project impacting a species within an 
NEP.
    Individuals used to establish an experimental population may come 
from a donor population, provided their removal is not likely to 
jeopardize the continued existence of the species, and appropriate 
permits are issued in accordance with our regulations (50 CFR 17.22) 
prior to their removal.
    2. Biological: Since the mid-1980s, Conservation Fisheries, Inc. 
(CFI), with support from us, the Tennessee Wildlife Resources Agency 
(TWRA), U.S. Forest Service (USFS), National Park Service, Tennessee 
Valley Authority (TVA), and Tennessee Aquarium (TA), has reintroduced 
the smoky madtom, duskytail darter, yellowfin madtom, and spotfin chub 
into Abrams Creek, within the Great Smoky Mountains National Park, 
Blount County, Tennessee. We have evidence that all four species are 
becoming reestablished in Abrams Creek (Rakes et al. 1998). Based on 
this success and CFI's intimate knowledge of the fishes' habitat needs, 
we contracted them to survey the Tellico River to determine if we could 
expand the recovery program for these fishes into the Tellico River.
    CFI determined that the Tellico River appears to contain ideal 
habitat for the reintroduction of the four fishes, between the 
backwaters of the Tellico Reservoir (approximately Tellico River

[[Page 30855]]

mile (TRM) 19 (30.4 kilometers (km))) and TRM 33 (52.8 km), near the 
Tellico Ranger Station, in Monroe County, Tennessee (Rakes and Shute 
1998). CFI concluded that the Tellico River's overall water quality and 
clarity, combined with substrate quality, were somewhat less optimal 
than Citico Creek, where three of the four species currently exist. 
However, they also concluded that the Tellico River contains as good or 
better habitat than that which exists in Abrams Creek, where 
reintroductions of all four species are apparently succeeding.
    Rakes and Shute (1998) reported that there are no confirmed 
historical collection records for these fishes from the Tellico River. 
However, they believe that all four species probably occurred in the 
river historically. They based their conclusion on two facts--(1) That 
the Tellico River is a Little Tennessee tributary just downstream from 
the mouths of Abrams and Citico Creeks (all four fishes historically 
occurred in these creeks) and (2) that all three streams drain the same 
physiographic provinces (Blue Ridge and Ridge and Valley). 
Additionally, all four species historically had access to the Tellico 
River. Prior to the construction of reservoirs on the main stem of the 
Little Tennessee River, no physical barriers prevented the movement of 
these fishes among Abrams Creek, Citico Creek, and the Tellico River 
(Peggy Shute, TVA, personal communication, 1998).
    3. Recovery Efforts: We listed the duskytail darter (Etheostoma 
percnurum) (Jenkins 1994) as an endangered species on April 27, 1993 
(58 FR 25758), and completed the recovery plan for this species in 
March 1994 (Service 1994). Although likely once more widespread in the 
upper Tennessee and middle Cumberland River systems, the species was 
historically known from only six populations--Little River and Abrams 
Creek, Blount County, Tennessee; Citico Creek, Monroe County, 
Tennessee; Big South Fork Cumberland River, Scott County, Tennessee, 
and McCreary County, Kentucky; Copper Creek and the Clinch River (this 
is one population), Scott County, Virginia; and the South Fork Holston 
River, Sullivan County, Virginia (Service 1994). The South Fork Holston 
River population is apparently extirpated. The Little River, Copper 
Creek/Clinch River, and Big South Fork Cumberland River populations are 
extant but small. CFI has reintroduced the duskytail darter into Abrams 
Creek, where a population is apparently becoming reestablished (Rakes 
et al. 1998).
    The downlisting criteria (reclassification from endangered to 
threatened status) in the Duskytail Darter Recovery Plan are: (1) 
Protect and enhance existing populations and reestablish a population 
so that at least three distinct viable duskytail darter populations 
exist, (2) complete studies of the species' biological and ecological 
requirements, (3) develop management strategies from these studies that 
are or are likely to be successful, and (4) ensure that no foreseeable 
threats exist which would likely threaten the continued existence of 
the three aforementioned viable populations. The delisting criteria in 
the recovery plan are: (1) Protect and enhance existing populations and 
reestablish populations so that at least five distinct viable duskytail 
darter populations exist, (2) complete studies of the species' 
biological and ecological requirements, (3) develop management 
strategies from these studies that are or are likely to be successful, 
and (4) ensure that no foreseeable threats exist which would likely 
threaten the continued existence of the five aforementioned viable 
populations.
    We listed the smoky madtom (Noturus baileyi) (Taylor 1969) as an 
endangered species on October 26, 1984 (49 FR 43065), and finalized the 
recovery plan for this species in August 1985 (Service 1985). Although 
once probably more widespread in tributaries to the lower Little 
Tennessee River system, this species was historically collected from 
only two creeks--Abrams Creek, Blount County, Tennessee, and Citico 
Creek, Monroe County, Tennessee (Service 1985). The Citico Creek 
population is still extant. CFI has reintroduced smoky madtom into 
Abrams Creek, and a population is apparently becoming reestablished 
(Rakes et al. 1998).
    The downlisting criteria in the Smoky Madtom Recovery Plan are: (1) 
Protect the existing Citico Creek population and reintroduce the 
species into Abrams Creek so that at least two distinct viable smoky 
madtom populations exist and (2) eliminate threats to the species by 
implementing management activities. The delisting criteria in the 
recovery plan are to: (1) Protect and enhance existing populations and 
reestablish populations so that at least four distinct viable smoky 
madtom populations (Abrams and Citico Creeks, plus two others) exist; 
(2) implement successful management plans for the populations in Abrams 
and Citico Creeks; and (3) protect all four populations and their 
habitat from present and foreseeable threats that could interfere with 
the survival of any of the populations.
    We listed the yellowfin madtom (Noturus flavipinnis) (Taylor 1969) 
as a threatened species on September 9, 1977 (42 FR 45527), and 
finalized the recovery plan for this species in June 1983 (Service 
1983a). This fish was probably once widely distributed in the Tennessee 
drainage, from the Chickamauga system upstream (Service 1983a). 
However, the yellowfin madtom was historically known from only six 
streams--South Chickamauga Creek, Catoosa County, Georgia; Hines Creek, 
a Clinch River tributary, Anderson County, Tennessee; North Fork 
Holston River, Smyth County, Virginia; Copper Creek, Scott and Russell 
Counties, Virginia; Powell River, Hancock County, Tennessee; and Citico 
Creek, Monroe County, Tennessee (Service 1983a). Although there are no 
historical yellowfin madtom records from Abrams Creek, Blount County, 
Tennessee, Lennon and Parker (1959) reported that the brindled madtom 
(the name given by early collectors for the yellowfin) was collected 
during a reclamation project of lower Abrams Creek in 1957. Based on 
this observation, Dinkins and Shute (1996) and others believe the 
species once occurred in the middle and lower reaches of Abrams Creek. 
Three small populations still persist--Citico Creek, Copper Creek, and 
the Powell River. CFI has reintroduced the species into Abrams Creek, 
and a population is apparently becoming reestablished (Rakes et al. 
1998).
    The delisting criteria in the Yellowfin Madtom Recovery Plan are 
to: (1) Protect and enhance existing populations and/or reestablish 
populations so viable populations exist in Copper Creek, Citico Creek, 
and the Powell River; (2) recreate and/or discover two additional 
viable populations; (3) ensure that noticeable improvements in coal-
related problems and substrate quality exist in the Powell River; and 
(4) protect the species and its habitat in all five rivers from present 
and foreseeable threats that may adversely affect essential habitat or 
the survival of any of the populations.
    We listed the spotfin chub (=turquoise shiner) (Cyprinella 
(=Hybopsis) monacha) (Cope 1868) as a threatened species on September 
9, 1977 (42 FR 45527), and finalized the recovery plan for this species 
in November 1983 (Service 1983b). This once widespread species was 
historically known from 24 streams in the upper and middle Tennessee 
River system. It is now extant in only four rivers/river systems--the 
Buffalo River at the mouth of Grinders Creek, Lewis County, Tennessee; 
Little Tennessee River, Swain and Macon Counties, North Carolina; Emory 
River

[[Page 30856]]

system (Obed River, Clear Creek, and Daddys Creek) Cumberland and 
Morgan Counties, Tennessee; Holston River and its tributary, the North 
Fork Holston River, Hawkins and Sullivan Counties, Tennessee, and Scott 
and Washington Counties, Virginia (Service 1983b; P. Shute, TVA, 
personal communication, 1998). CFI has reintroduced the species into 
Abrams Creek, and there are indications that it may become 
reestablished (Rakes et al. 1998).
    The delisting criteria in the Spotfin Chub Recovery Plan are to: 
(1) Protect and enhance existing populations and/or reestablish 
populations so that viable populations exist in the Buffalo River 
system, upper Little Tennessee River, Emory River system, and lower 
North Fork Holston River and (2) ensure, through reintroductions and/or 
the discovery of new populations, that two other viable populations 
exist.
    The recovery criteria for all four of these fishes generally agree 
that, to reach recovery, we must: (1) Restore existing populations to 
viable levels, (2) reestablish viable populations in historical 
habitats, and (3) eliminate foreseeable threats that would likely 
threaten the continued existence of any viable populations. The number 
of secure, viable populations (existing and restored) that are needed 
to achieve recovery varies by species and depends on the extent of the 
species' probable historical range (i.e., species that were once 
widespread require a greater number of populations for recovery than 
species that were historically more restricted in distribution). 
However, the reestablishment of historical populations is a critical 
component to the recovery of all four species.
    4. Reintroduction Site: In March 1998, the Executive Director of 
the TWRA stated that he supports the conclusions of Rakes and Shute 
(1998), and requested that we consider designating the Tellico River a 
NEP Area and reintroducing the four fishes. He further stated that (1) 
the Tellico River was the probable historical habitat of the duskytail 
darter, smoky madtom, yellowfin madtom, and spotfin chub; and (2) the 
Tellico River appeared to have almost ideal habitat for the 
reintroduction of all four fishes.
    Dr. David Etnier, Department of Ecology and Evolutionary Biology, 
University of Tennessee, Knoxville, Tennessee, stated in April 1998, 
that he supports the reintroduction of the four species into the 
Tellico River. Dr. Etnier presented several reasons for his support: 
(1) The mouth of the Tellico River is approximately 10 miles (16 km) 
downstream of the mouth of Citico Creek, which historically supported 
all four species and currently supports all but the spotfin chub; (2) 
CFI's habitat analysis indicated that reintroductions of these fishes 
into the Tellico River have a greater potential for success than 
reintroductions into any other tributary of the Little Tennessee River 
system, except Abrams Creek, where apparently successful 
reintroductions are already occurring; (3) apparently, no fish 
collections were made from the Tellico River prior to the 1960s, so the 
extirpation of these fishes could have occurred prior to the 1960s due 
to siltation caused by heavy logging in the watershed around the turn 
of the century; and (4) none of these species displays any biological 
attributes that suggest they could become a problem if successfully 
established into the Tellico River.
    We propose to reintroduce populations of the duskytail darter, 
smoky madtom, yellowfin madtom, and spotfin chub (=turquoise shiner) 
into the Tellico River, between the backwaters of the Tellico Reservoir 
(approximately Tellico River mile (TRM) 19 (30.4 kilometers (km))) and 
TRM 33 (52.8 km), near the Tellico Ranger Station, in Monroe County, 
Tennessee and to designate these populations as NEPs. This area is 
identified as the proposed NEP Area.
    5. Reintroduction Procedures: At this time, we cannot determine the 
proposed dates for these reintroductions, the specific sites where the 
fish species will be released, and the actual number of individuals to 
be released. We will release primarily artificially propagated 
juveniles, but we could release some wild adult stock. Propagation and 
juvenile rearing technology is available for the spotfin chub and the 
duskytail darter. Limited numbers of smoky and yellowfin madtom 
juveniles can be reared using eggs and larvae taken from the wild. 
However, madtom artificial propagation technology, which is needed to 
produce large numbers of juvenile madtoms, will likely not be available 
for 2 to 3 years.
    The parents of the juveniles reintroduced into the NEP Area will 
come from existing wild populations. The two madtoms and duskytail 
darters will come from a nearby Little Tennessee River tributary--
Citico Creek, Monroe County, Tennessee. The spotfin chubs will come 
from upstream in the Little Tennessee River, Swain County, North 
Carolina. In some cases the parents will be returned to the wild 
population from which they were taken. However, in most cases the 
parents will be permanently relocated to propagation facilities.

Status of Reintroduced Populations

    We determine that these proposed reintroduced fish populations are 
not essential to the continued existence of the species. Therefore, we 
believe it is appropriate to designate these populations as 
nonessential in accordance with section 10(j) of the Act. We will 
ensure, through our section 10 permit authority and the section 7 
consultation process, that the use of animals from any donor population 
for these reintroductions is not likely to jeopardize the continued 
existence of the species. Therefore, if any of the reintroduced 
populations become established and are subsequently lost, it would not 
reduce the likelihood of the species' survival in the wild or 
jeopardize its continued existence. In fact, the anticipated success of 
these reintroductions will enhance the conservation and recovery 
potential of these species by extending their present ranges into 
currently unoccupied historic habitat. These species are not known to 
exist in the Tellico River or its tributaries at the present time.

Location of Reintroduced Populations

    Sites for the proposed reintroduction of these four fish species 
into the Tellico River, Monroe County, Tennessee, are within the 
proposed NEP Area. This area is totally isolated from existing 
populations of these species by large reservoirs, and none of these 
fishes are known to occur or move through large reservoir habitat. 
Therefore, these reservoirs will act as barriers to the downstream 
expansion of these species into the main stem of the Little Tennessee 
River and its tributaries and ensure that these populations will remain 
geographically isolated.

Management

    We do not believe these reintroductions will conflict with existing 
or proposed human activities or hinder public utilization of the NEP 
Area. Experimental population special rules contain all the 
prohibitions and exceptions regarding the taking of individual animals. 
These special rules are more compatible with routine human activities 
in the reintroduction area.
    Based on the habitat requirements of these four fishes, we do not 
expect them to become established outside the NEP Area. However, if any 
of the four species move upstream or downstream or into tributaries 
outside of the designated NEP Area, we would presume that the animals 
had come from the reintroduced populations. The rule will be amended 
and the boundaries of the

[[Page 30857]]

NEP Area would be enlarged to include the entire range of the expanded 
population.

Preliminary Notification and Comment

    On June 26, 1998, we mailed letters to 67 potentially affected 
congressional offices, Federal and State agencies, local governments, 
and interested parties that we were considering proposing NEP status 
for four fish species in the Tellico River. We received four written 
responses.
    The U.S. Forest Service, which is significantly involved in 
reintroduction efforts for these fishes into Abrams Creek, supports 
proposed reintroductions into the Tellico River as NEPs and offered to 
cooperate with us and TWRA in the reintroductions.
    The Tennessee Department of Environment and Conservation, Division 
of Natural Heritage, supports the reintroduction of the four fishes 
into the Tellico River. They believe that designating the reintroduced 
populations as NEPs is appropriate because it should enable Federal, 
State, and local authorities to continue to promote the conservation 
and recovery of these fishes.
    The Tennessee Chapter of the American Fisheries Society supports 
the reintroduction of these fishes into the Tellico River under NEP 
status. They concluded that: (1) Although there is little information 
on the historical environmental conditions in the Tellico River, the 
river now supports a relatively healthy native fish community with 
respect to species diversity, species composition, fish abundance, and 
fish health; (2) the river appears to contain suitable habitat for the 
survival of all four species; (3) all four species probably 
historically occupied the river; and (4) designating reintroductions as 
NEPs greatly relaxes regulatory requirements and makes introduced 
populations more compatible with other resource use in the watershed.
    The Southeast Aquatic Research Institute (SARI) fully supports 
these reintroductions.

Public Comments Solicited

    We intend for any rule that is finally adopted to be as effective 
as possible. Therefore, we invite the public, concerned government 
agencies, the scientific community, industry, and other interested 
parties to submit comments or recommendations concerning any aspect of 
this proposed rule (see ADDRESSES section).
    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. In some circumstances, we would withhold 
from the rulemaking record a respondent's identity, as allowable by 
law. If you wish for us to withhold your name and/or address, you must 
state this request prominently at the beginning of your comment. 
However, we will not consider anonymous comments. We will make all 
submissions from organizations or businesses available for public 
inspection in their entirety.

Public Hearings

    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 the proposal in the Federal Register. Such requests 
for a hearing must be addressed to the State Supervisor for the Fish 
and Wildlife Service in North Carolina (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    This rule is not a significant rule and is not subject to review by 
the Office of Management and Budget (OMB) under Executive Order 12866. 
This rule will not have an effect of $100 million or more on the 
economy. It will not adversely affect in a material way the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities. The area 
affected by this rule consists of a very limited and discrete 
geographic segment (only 14 river miles (22.4 km)) of the Tellico River 
in Monroe County, Tennessee. No significant impacts to existing human 
activities on the river as a result of this rule are expected.
    This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. 
Designating reintroduced populations of federally listed species as 
NEPs significantly reduces the Act's regulatory requirements regarding 
the reintroduced listed species. Because of the substantial regulatory 
relief, we do not believe the reintroduction of these fishes will 
conflict with existing or proposed human activities or hinder public 
use of the Tellico River.
    This rule does not alter the budgetary effects or 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 Tellico River 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. We have 
previously promulgated section 10(j) rules for experimental populations 
of other listed threatened or endangered species in various localities 
since 1984. The rules are designed to reduce the regulatory burden that 
would otherwise exist when reintroducing listed species to the wild.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Although most, if not all, of the identified entities are small 
businesses engaged in activities along the affected reach of the 
stream, this rule will have no economic effect in that it will operate 
to reduce or remove regulatory restrictions (see above for discussion 
of expected impacts).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule does not have 
an annual effect on the economy of $100 million or more on local or 
State governments or private entities. This rule will not cause a major 
increase in costs or prices for consumers, individual industries, 
Federal, State, or local government agencies, or geographic regions. 
This rule does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. The 
intent of this special rule is to facilitate and continue the existing 
commercial activity, while providing for the conservation of species 
through reintroduction into suitable habitat.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector. The TWRA, which 
manages the fishes in the Tellico River, requested that we consider 
this reintroduction under an NEP designation. However, this rule will 
not require the TWRA to specifically manage for any of these 
reintroduced species. A statement

[[Page 30858]]

containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. When reintroduced populations of 
federally listed species are designated as NEPs, the Act's regulatory 
requirements regarding the reintroduced listed species within the NEP 
are significantly reduced. Section 10(j) of the Act can provide 
regulatory relief with regard to the taking of reintroduced species 
within a NEP area. For example, this rule allows for the unavoidable 
and unintentional taking of these reintroduced fishes when such take is 
incidental to a legal activity (e.g., boating, wading, and fishing) and 
the activity is in accordance with State laws or regulations. Because 
of the substantial regulatory relief provided by NEP designations, we 
do not believe the reintroduction of these fishes will conflict with 
existing or proposed human activities or hinder public use of the 
Tellico River system. A takings implication assessment is not required.

Federalism (Executive Order 13732)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. This rule will not have substantial direct 
effects on the States, in the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. We have 
coordinated extensively with the State of Tennessee on the proposed 
reintroduction of fish to the Tellico River. We are undertaking this 
rulemaking at the request of the State wildlife agency (TWRA) in order 
to assist the State in restoring and recovering its native aquatic 
fauna. Achieving the recovery goals for these four fish species will 
contribute to the eventual delisting of these species and, thus, the 
return of these species to State management. We do not expect any 
intrusion on State policy or administration; roles or responsibilities 
of Federal or State governments will not change; and fiscal capacity 
will not be substantially directly affected. This special rule operates 
to maintain the existing relationship between the States and the 
Federal Government and is being undertaken at the request of a State 
agency. We have endeavored to cooperate with the TWRA in the 
preparation of this proposed rule.

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Department of the 
Interior has determined that this proposed rule does not unduly burden 
the judicial system and meets the applicable standards provided in 
sections (3)(a) and (3)(b)(2) of the order.

Paperwork Reduction Act

    This rule does not require an information collection from 10 or 
more parties and a submission under the Paperwork Reduction Act is not 
required.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act is not required. We have 
determined that the issuance of a proposed rule for these NEPs is 
categorically excluded under our NEPA procedures (516 DM 6, Appendix 
1.4 B (6)).

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (5) Is the description of the rule in 
the SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the rule? (6) What else could we do to make the rule 
easier to understand?
    Send your comments concerning how we could make this rule easier to 
understand to: Office of Regulatory Affairs, Department of the 
Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240 (e-mail: 
<a href="/cdn-cgi/l/email-protection#21645952444261484e520f454e480f464e57"><span class="__cf_email__" data-cfemail="3b7e43485e587b525448155f5452155c544d">[email protected]</span></a>).

Literature Cited

Dinkins, G.R., and P.W. Shute. 1996. Life history of Noturus baileyi 
and N. flavipinnis (Pisces: Ictaluridae), two rare madtom catfishes 
in Citico Creek, Monroe County, Tennessee. Bull. Alabama. Mus. Nat. 
His. 18:43-69.
Lennon, R.E., and P.S. Parker. 1959. The reclamation of Indian and 
Abrams Creeks, Great Smoky Mountains National Park. U.S. Fish and 
Wildlife Service Scientific Report 306. 22 pp.
Rakes, P.L., and J.R. Shute. 1998. Results of an assay of portions 
of the Tellico and Hiwassee Rivers for suitable habitat to support 
reintroductions of rare fish. January 23, 1998, unpublished report 
prepared by Conservation Fisheries, Inc., Knoxville, Tennessee, for 
U.S. Fish and Wildlife Service, Asheville, North Carolina. 14 pp.
Rakes, P.L., P.W. Shute, and J.R. Shute. 1998. Captive propagation 
and population monitoring of rare Southeastern fishes. Final Report 
for 1997. Field Season and Second Quarter Report for Fiscal Year 
1998, prepared for Tennessee Wildlife Resources Agency, Contract No. 
FA-4-10792-5-00. 32 pp.
U.S. Fish and Wildlife Service. 1983a. Yellowfin Madtom Recovery 
Plan. Atlanta, GA. 33 pp.
______1983b. Spotfin Chub Recovery Plan. Atlanta, GA. 46 pp.
______1985. Smoky Madtom Recovery Plan. Atlanta, GA. 28 pp.
______1994. Duskytail Darter Recovery Plan. Atlanta, GA. 25 pp.

Author

    The principal author of this proposed rule is Richard G. Biggins 
(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 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. In Sec. 17.11(h), revise entries in the table under FISHES for 
``Chub, spotfin''; ``Darter, duskytail''; ``Madtom, smoky''; and 
``Madtom, yellowfin''; to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 30859]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                Vertebrate
----------------------------------------------------                      population where                                   Critical
                                                       Historic range       endangered or        Status     When listed      habitat       Special rules
          Common name              Scientific name                           threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
             Fishes
 
                   *                  *                  *                  *                  *                  *                  *
Chub, spotfin (=turquoise        Cyprinella          U.S.A. (AL, GA,     Entire, except      T                       28  17.95(e)         17.44(c)
 shiner).                         (=Hybopsis)         NC, TN, VA).        where listed as
                                  monacha.                                an experimental
                                                                          population.
Do.............................  ......do..........  ......do..........  Tellico River,      XN             ...........  NA               17.84(m)
                                                                          from the
                                                                          backwaters of the
                                                                          Tellico Reservoir
                                                                          (about Tellico
                                                                          River mile 19
                                                                          (30.4 km))
                                                                          upstream to
                                                                          Tellico River
                                                                          mile 33 (52.8
                                                                          km), in Monroe
                                                                          County, TN.
 
                   *                  *                  *                  *                  *                  *                  *
Darter, duskytail..............  Etheostoma          U.S.A. (TN, VA)...  Entire, except      E                      502  NA               NA
                                  percnurum.                              where listed as
                                                                          an experimental
                                                                          population.
Do.............................  ......do..........  ......do..........  Tellico River,      XN             ...........  NA               17.84(m)
                                                                          from the
                                                                          backwaters of the
                                                                          Tellico Reservoir
                                                                          (about Tellico
                                                                          River mile 19
                                                                          (30.4 km))
                                                                          upstream to
                                                                          Tellico River
                                                                          mile 33 (52.8
                                                                          km), in Monroe
                                                                          County, TN.
 
                   *                  *                  *                  *                  *                  *                  *
Madtom, smoky..................  Noturus baileyi...  U.S.A. (TN).......  Entire, except      E                      163  17.95(e)         NA
                                                                          where listed as
                                                                          an experimental
                                                                          population.
Do.............................  ......do..........  ......do..........  Tellico River,      XN             ...........  NA               17.84(m)
                                                                          from the
                                                                          backwaters of the
                                                                          Tellico Reservoir
                                                                          (about Tellico
                                                                          River mile 19
                                                                          (30.4 km))
                                                                          upstream to
                                                                          Tellico River
                                                                          mile 33 (52.8
                                                                          km), in Monroe
                                                                          County, TN.
Madtom, yellowfin..............  Noturus             U.S.A. (TN, VA)...  Entire, except      T                   28,317  17.95(e)         17.44(c)
                                  flavipinnis.                            where listed as
                                                                          an experimental
                                                                          population.
Do.............................  ......do..........  ......do..........  N. Fork Holston     XN                     317  NA               17.84(e)
                                                                          River Watershed,
                                                                          VA, TN; S. Fork
                                                                          Holston R.,
                                                                          upstream to Ft.
                                                                          Patrick Henry
                                                                          Dam, TN; Holston
                                                                          R. downstream to
                                                                          John Sevier
                                                                          Detention Lake
                                                                          Dam, TN; and all
                                                                          tributaries
                                                                          thereto.
Do.............................  ......do..........  ......do..........  Tellico River,      XN             ...........  NA               17.84(e)
                                                                          from the
                                                                          backwaters of the
                                                                          Tellico Reservoir
                                                                          (about Tellico
                                                                          River mile 19
                                                                          (30.4 km))
                                                                          upstream to
                                                                          Tellico River
                                                                          mile 33 (52.8
                                                                          km), in Monroe
                                                                          County, TN.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Revise Sec. 17.84(e) to read as follows:


Sec. 17.84  Special rules--vertebrates.

* * * * *
    (e) Yellowfin madtom (Noturus flavipinnis).
    (1) Where is the yellowfin madtom designated as a nonessential 
experimental population (NEP)?

[[Page 30860]]

    (i) The North Fork Holston River Watershed NEP Area is within the 
species' historic range and is defined as follows: The North Fork 
Holston River watershed, Washington, Smyth, and Scott Counties, 
Virginia; South Fork Holston River watershed upstream to Ft. Patrick 
Henry Dam, Sullivan County, Tennessee; and the Holston River from the 
confluence of the North and South Forks downstream to the John Sevier 
Detention Lake Dam, Hawkins County, Tennessee. This site is totally 
isolated from existing populations of this species by large Tennessee 
River tributaries and reservoirs. As the species is not known to 
inhabit reservoirs, and it is unlikely that the fish could move 100 
river miles through these large reservoirs, the possibility of this 
population contacting extant wild populations is unlikely.
    (ii) The Tellico River NEP Area is within the species' historic 
range and is defined as follows: The Tellico River, between the 
backwaters of the Tellico Reservoir (approximately Tellico River mile 
(TRM) 19 (30.4 kilometers (km))) and TRM 33 (52.8 km), near the Tellico 
Ranger Station, in Monroe County, Tennessee. This species is not 
currently known to exist in the Tellico River or its tributaries. Based 
on the habitat requirements of this species, we do not expect the fish 
to become established outside this NEP Area. However, if they do move 
upstream or downstream or into tributaries outside of the designated 
NEP Area, we will presume that the fish came from the reintroduced 
populations. We will amend this rule and enlarge the boundaries of the 
NEP Area to include the entire range of the expanded population.
    (iii) We do not intend to change the NEP designations to 
``essential experimental,'' ``threatened,'' or ``endangered'' within 
the NEP Areas. Additionally, we will not designate critical habitat for 
these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).
    (2) What activities are not allowed in the NEP Area?
    (i) Except as expressly allowed in this paragraph (e), all the 
prohibitions of Sec. 17.31(a) and (b) apply to the fish identified in 
this paragraph.
    (ii) Any manner of take not described under paragraph (e)(3) of 
this section is prohibited in the NEP Area. We may refer unauthorized 
take of these species to the appropriate authorities for prosecution.
    (iii) You may not possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever any of the identified fish, 
or parts thereof, that are taken or possessed in violation of this 
paragraph or in violation of the applicable State fish and wildlife 
laws or regulations or the Act.
    (iv) You may not attempt to commit, solicit another to commit, or 
cause to be committed any offense defined in this paragraph.
    (3) What take is allowed in the NEP Area? Take of this species that 
is accidental and incidental to an otherwise lawful activity, such as 
fishing, boating, trapping, wading, or swimming, is allowed.
    (4) How will the effectiveness of these reintroductions be 
monitored? We will prepare periodic progress reports and fully evaluate 
these reintroduction efforts after 5 and 10 years to determine whether 
to continue or terminate the reintroduction efforts.
* * * * *
    4. Amend Sec. 17.84 by adding paragraph (m) to read as follows:


Sec. 17.84  Special rules--vertebrates.

* * * * *
    (m) Spotfin chub (=turquoise shiner) (Cyprinella (=Hybopsis) 
monacha), duskytail darter (Etheostoma percnurum), smoky madtom 
(Noturus baileyi).
    (1) Where are these fish designated as nonessential experimental 
populations (NEPs)?
    (i) The NEP Area for the three fishes is within the species' 
probable historic ranges and is defined as follows: The Tellico River, 
from the backwaters of the Tellico Reservoir (approximately Tellico 
River mile (TRM) 19 (30.4 kilometers (km))) to TRM 33 (52.8 km), near 
the Tellico Ranger Station, in Monroe County, Tennessee.
    (ii) None of the fish named in this paragraph (m) are currently 
known to exist in the Tellico River or its tributaries. Based on the 
habitat requirements of these fish, we do not expect them to become 
established outside the NEP Area. However, if any of the species move 
upstream or downstream or into tributaries outside of the designated 
NEP Area, we will presume that the fish came from the reintroduced 
populations. We will amend this paragraph and enlarge the boundaries of 
the NEP Area to include the entire range of the expanded population.
    (iii) We do not intend to change the NEP designations to 
``essential experimental,'' ``threatened,'' or ``endangered'' within 
the NEP Area. Additionally, we will not designate critical habitat for 
these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).
    (2) What activities are not allowed in the NEP Area?
    (i) Except as expressly allowed in this paragraph, all the 
prohibitions of Sec. 17.31(a) and (b) apply to the fish identified in 
this paragraph.
    (ii) Any manner of take not described under paragraph (m)(3) of 
this section is prohibited in the NEP Area. We may refer unauthorized 
take of these species to the appropriate authorities for prosecution.
    (iii) You may not possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever any of the identified fish, 
or parts thereof, that are taken or possessed in violation of this 
paragraph or in violation of the applicable State fish and wildlife 
laws or regulations or the Act.
    (iv) You may not attempt to commit, solicit another to commit, or 
cause to be committed any offense defined in this paragraph.
    (3) What take is allowed in the NEP Area? Take of these species 
that is accidental and incidental to an otherwise lawful activity, such 
as fishing, boating, trapping, wading, or swimming, is allowed.
    (4) How will the effectiveness of these reintroductions be 
monitored? We will prepare periodic progress reports and fully evaluate 
these reintroduction efforts after 5 and 10 years to determine whether 
to continue or terminate the reintroduction efforts.

    Dated: March 20, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-14454 Filed 6-7-01; 8:45 am]
BILLING CODE 4310-55-P


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