32250 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

requested information to the employer

making the inquiry.

(i) As the employer requesting the

information required under this section,

you must maintain a written,

confidential record of the information

you obtain or of the good faith efforts

you made to obtain the information.

You must retain this information for

three years from the date of the

employee’s first performance of safetysensitive duties for you.

(j) As the employer, you must also ask

the employee whether he or she has

tested positive, or refused to test, on any

pre-employment drug or alcohol test

administered by an employer to which

the employee applied for, but did not

obtain, safety-sensitive transportation

work covered by DOT agency drug and

alcohol testing rules during the past two

years. If the employee admits that he or

she had a positive test or a refusal to

test, you must not use the employee to

perform safety-sensitive functions for

you, until and unless the employee

documents successful completion of the

return-to-duty process (see paragraphs

(b)(5) and (e) of this section).

Regulatory Analyses and Notices

The Department has previously

considered all of 49 CFR Part 40 with

respect to rulemaking process

requirements (see 65 FR 79516–79518;

December 19, 2000). The proposed rule,

analyses concerning it, and the

comments on it can be found in the

Department’s docket or on the

Department’s Dockets Management

System (DMS) web site. The address for

the Dockets office and the DMS web site

are listed under ADDRESSES above. This

action is simply a response to an

industry request for, essentially, the

reopening of a comment period; the

Department does not propose to take

any new action through this document

that would be subject to statutory or

Executive Order requirements

concerning the regulatory process.

Issued this 11th Day of June, 2001, at

Washington DC.

Kenneth C. Edgell,

Acting Director, Office of Drug and Alcohol

Policy and Compliance.

[FR Doc. 01–15072 Filed 6–12–01; 10:41 am]

BILLING CODE 4910–62–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE92

Endangered and Threatened Wildlife

and Plants; Establishment of

Nonessential Experimental Population

Status for 16 Freshwater Mussels and

1 Freshwater Snail (Anthony’s

Riversnail) in the Free-Flowing Reach

of the Tennessee River below the

Wilson Dam, Colbert and Lauderdale

Counties, AL

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the Fish and Wildlife

Service (Service), plan to reintroduce 16

federally listed endangered mussels—

Alabama lampmussel (Lampsilis

virescens), birdwing pearlymussel

(Conradilla caelata), clubshell

(Pleurobema clava), cracking

pearlymussel (Hemistena lata),

Cumberland bean (pearlymussel)

(Villosa trabalis), Cumberlandian

combshell (Epioblasma brevidens),

Cumberland monkeyface pearlymussel

(Quadrula intermedia), dromedary

pearlymussel (Dromus dromas), finerayed pigtoe (Fusconaia cuneolus),

oyster mussel (Epioblasma

capsaeformis), catspaw (purple cat’s

paw pearlymussel) (Epioblasma

obliquata obliquata), shiny pigtoe

(Fusconaia cor), tubercled blossom

(pearlymussel) (Epioblasma torulosa

torulosa), turgid blossom (pearlymussel)

(Epioblasma turgidula), winged

mapleleaf (mussel) (Quadrula fragosa),

and yellow blossom (pearlymussel)

(Epioblasma florentina florentina)—and

1 federally listed endangered aquatic

snail, Anthony’s riversnail (Athearnia

anthonyi), into historical habitat in the

free-flowing reach of the Tennessee

River. The geographic boundaries of the

nonessential experimental populations

(NEPs) extend from the base of the

Wilson Dam (River Mile 259.4 (414.0

kilometers)) to the backwaters of the

Pickwick Reservoir (RM 246.0 (393.6

km)) and include the lower 5 RM (8 km)

of all tributaries that enter the Wilson

Dam tailwaters.

These reintroduced populations will

be classified as NEPs under section 10(j)

of the Endangered Species Act of 1973,

as amended (Act). Based on the

evaluation of species experts, none of

these species are currently known to

exist in this river reach or its tributaries.

These reintroductions are recovery

actions and are part of a series of

reintroductions and other recovery

actions that the Service, Federal and

State agencies, and other partners are

considering and conducting throughout

the species’ historical ranges. This rule

provides a plan for establishing the

NEPs and provides for limited allowable

legal taking of the aforementioned

mollusks within the defined NEP Area.

DATES: The effective date of this rule is

July 16, 2001.

ADDRESSES: The complete

administrative file for this rule is

available for inspection, by

appointment, during normal business

hours at the Asheville Field Office, U.S.

Fish and Wildlife Service, 160 Zillicoa

Street, Asheville, North Carolina 28801.

FOR FURTHER INFORMATION CONTACT: Mr.

Richard G. Biggins at 828/258–3939,

Ext. 228; facsimile 828/258–5330; and email richard_biggins@fws.gov.

SUPPLEMENTARY INFORMATION:

Background

1. Legislative: Congress made

significant changes to the Endangered

Species Act of 1973 (Act), as amended,

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 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

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32251

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

NEP’s 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: Muscle Shoals

(sometimes referred to as Mussel

Shoals), a 53 RM (85-km) reach of the

Tennessee River in Colbert and

Lauderdale Counties, Alabama, once

supported the world’s greatest

assemblage of freshwater mussels (van

der Schalie 1939) and was one of the

finest mussel habitats ever known (Isom

1969). Ortmann (1924) stated that no

other place on earth could compare to

this shoal with respect to freshwater

mussels. This river reach historically

contained nearly 80 percent of all the

mussel taxa known from the entire

Tennessee River system (ca. 100 taxa)

and about 25 percent of the total North

American mussel fauna (ca. 300 taxa).

Ortmann (1925) listed 69 mussel species

and varieties from this shoal complex.

Stansbery (1964), using current

nomenclatural concepts, excluding

subspecies, and adding a species not

reported by Ortmann (1925), reported

the mussel diversity at 63 species. A

biologist with the Alabama Division of

Wildlife and Freshwater Fisheries

(ADWFF) (J. Garner, personal

communication, 1997) combined

historic distribution records (Ortmann

1925, van der Schalie 1939, Scruggs

1960, Stansbery 1964, Gooch et al. 1979)

with personal observations and the

observations of malacologists (scientists

who study mollusks) familiar with the

area (P. Yokley and T. Richardson,

University of North Alabama, and S.

Ahlstedt, U.S. Geological Survey,

personal communication, 1997) and

found that a total of 78 mussel taxa had

been reported from Muscle Shoals.

Goodrich (1931) reported that

Anthony’s riversnail also occurred at

Muscle Shoals. However, the species is

no longer found in the area (Garner,

personal communication, 1997).

With the completion of Wilson Dam

(completed in 1924), Wheeler Dam

(completed in 1936), and Pickwick Dam

(completed in 1938), about 41 RM (66

km) of shoal habitat were impounded.

Although some mussel species survived

in the remaining 12 RM (19 km) of shoal

habitat between Wilson Dam and the

backwaters of Pickwick Reservoir, much

of the diversity and abundance of

mussels in that reach began to

disappear. Based largely on a 1931

survey of Muscle Shoals, van der

Schalie (1939) reported the resident

mussel fauna at 40 species; Stansbery

(1964) listed 30 species from a 1963

mussel survey of remaining shoal

habitat; and Isom (1969) reported that

31 species existed on the shoal. Garner

(personal communication, 1997)

reviewed current and recent historical

records (last 20 years) and concluded

that possibly as many as 44 mussel

species, including 6 federally listed

mussels—fanshell (Cyprogenia stegaria),

orange-foot pimple back pearlymussel

(Plethobasus cooperianus), pink mucket

(Lampsilis abrupta), ring pink (Obovaria

retusa), rough pigtoe (Pleurobema

plenum), and white wartyback

(pearlymussel) (Plethobasus

cicatricosus)—are known, or presumed

to still exist in the free-flowing riverine

habitat below Wilson Dam. Because

these six listed mollusks exist, or are

believed to still exist in this river reach,

they are not included in this

reintroduction effort. However, these

populations could be augmented with

artificially propagated juveniles. They

will retain their endangered status and

associated protections. Based on a

review of the most recent records, it is

presumed that 34 mussel species,

including 16 federally listed mussels

and the Anthony’s riversnail, have been

extirpated from the Muscle Shoals

complex (Garner, personal

communication, 1997).

Although many aquatic mollusks have

been lost from Muscle Shoals, habitat

quality has been improving in the

remaining shoal habitat in recent years.

The Tennessee Valley Authority (TVA)

(1993), reporting on their Clean Water

Initiative, rated macroinvertebrates

below Wilson Dam as excellent. The

Reservoir Fish Assemblage Index, a

measure the TVA uses to rate the health

of the fish fauna at sites throughout the

Tennessee River valley, was rated as

good in the Wilson Dam tailwaters

during 1993, 1994, and 1996; no figure

was given for 1995 (E. Scott, TVA,

personal communication, 1997).

Additionally, the ADWFF Director, in a

December 9, 1996, letter to us, points to

the improving water quality and the

32252 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

improved health of mussel and snail

populations below Wilson Dam and

other TVA dams on the Tennessee River

in Alabama.

The Tennessee River from about 1.4

RM (2.2 km) below Wilson Dam to the

backwaters of Pickwick Reservoir (about

12 RM (19 km)) now appears suitable for

a mollusk reintroduction effort for

several reasons: (1) habitat quality in the

Wilson Dam tailwaters has improved;

(2) existing aquatic mollusk populations

have responded positively to the

improved habitat quality; (3) Muscle

Shoals historically contained a rich

mollusk fauna, and some of the shoal

habitat that once supported this fauna

still remains; and (4) the

reestablishment of listed mollusks to

historic habitat is identified as a highpriority task in listed aquatic mollusk

recovery plans.

3. Recovery Efforts: The Alabama

lampmussel (Lampsilis virescens) (Lea

1858), a Tennessee River system

endemic, was listed as an endangered

species on June 14, 1976 (41 FR 24064).

We completed a recovery plan for this

species in July 1985 (Service 1985a).

The Alabama lampmussel was

historically known from seven rivers in

the Tennessee River system (Ortmann

1918, Bogan and Parmalee 1983, Service

1985a). The species was last collected at

Muscle Shoals prior to 1925 (Ortmann

1925) and is presumed to be extirpated

from the shoal. Currently, the species is

known to survive only in the upper

Paint Rock River system, Jackson

County, Alabama (Service 1985a). The

delisting objectives in the recovery plan

call for: (1) restoring the viability of the

population in the Paint Rock River and

its tributaries; (2) reestablishing or

discovering viable populations in two

additional rivers; and (3) ensuring there

are no foreseeable threats to the

continued existence of any of the

populations. No downlisting

(reclassification from endangered to

threatened) criteria are provided in the

recovery plan.

The birdwing pearlymussel

(Conradilla caelata) (Conrad 1834) was

listed as an endangered species on June

14, 1976 (41 FR 24064). We finalized a

recovery plan for the species in July

1984 (Service 1984c). This species was

originally known from 11 rivers in the

Tennessee River system, and one record

exists from an unknown location in the

Cumberland River. The species was last

collected from Muscle Shoals prior to

1925 (Ortmann 1925) and is presumed

to be extirpated from the shoal. It

currently survives in the Clinch and

Powell Rivers in Tennessee and Virginia

and in the Duck and Elk Rivers in

Tennessee (Service 1984c). The

delisting objectives presented in the

recovery plan call for: (1) Restoring the

viability of the populations in the

Clinch and Powell Rivers; (2)

reestablishing or discovering viable

populations in three additional rivers

(only two rivers if Columbia Dam on the

Duck River is not built); (3) ensuring

there are no foreseeable threats to the

continued existence of any of the

populations; and (4) noticeable

improvements in coal-related problems

and substrate quality in the Powell

River and no increase in coal-related

sedimentation in the Clinch River. No

downlisting criteria are given in the

recovery plan.

The clubshell (Pleurobema clava)

(Lamarck 1819) was listed as an

endangered species on January 22, 1993

(58 FR 5642). We finalized a recovery

plan for the species in September 1993

(Service 1993a). This widespread

species occurred in the Ohio River and

Lake Erie basins but now survives in

only a few small and isolated

populations in both basins (Service

1993a). It was last found at Muscle

Shoals prior to 1925 (Ortmann 1925)

and is presumed no longer to survive in

this river reach. The downlisting

objectives in the recovery plan call for

the establishment of 10 viable

populations and ensuring there are no

foreseeable threats to the continued

existence of any of the populations. The

delisting objectives call for: (1) The

establishment of 10 viable populations;

(2) populations to be large enough to

survive a single adverse ecological

event; and (3) ensuring that there are no

foreseeable threats to the continued

existence of any of the populations.

The cracking pearlymussel

(Hemistena lata) (Rafinesque 1820) was

listed as an endangered species on

September 28, 1989 (54 FR 39853). We

finalized a recovery plan for the species

in July 1991 (Service 1991). This

widespread species historically

occurred in the Ohio, Cumberland, and

Tennessee River systems (Bogan and

Parmalee 1983, Service 1991). It has

been extirpated throughout much of its

range. It was last collected at Muscle

Shoals prior to 1925 (Ortmann 1925)

and is presumed no longer to survive in

this river reach. It is presently known to

survive at only a few shoals in the

Clinch and Powell Rivers in Tennessee

and Virginia (Bogan and Parmalee 1983,

Neves 1991). This species possibly

survives in the Green River, Kentucky,

and below Pickwick Reservoir in the

Tennessee River, Tennessee (Service

1991). The downlisting objectives in the

recovery plan call for the establishment

of five viable populations and ensuring

that there are no foreseeable threats to

the continued existence of any of the

populations. The delisting objectives

call for the establishment of eight viable

populations.

The Cumberland bean (pearlymussel)

(Villosa trabalis) (Conrad 1834) was

listed as an endangered species on June

14, 1976 (41 FR 24064). A recovery plan

for the species was approved August 22,

1984 (Service 1984d). This species was

historically known from 10 river

systems in the Cumberland and

Tennessee river basins (Service 1984d).

It was last collected at Muscle Shoals,

which may represent its type locality,

prior to 1925 (Ortmann 1925) and is

presumed to be extirpated from the

shoal. The Cumberland bean currently

survives only in the Hiwassee River in

Tennessee and in Buck Creek, the Little

South Fork of the Cumberland River,

and the Rockcastle River system in

Kentucky (Service 1984d). The delisting

objectives in the recovery plan call for:

(1) Restoring the viability of its

populations in Buck Creek, the

Rockcastle River, and the Little South

Fork River in Kentucky; (2)

reestablishing or discovering viable

populations in two additional rivers;

and (3) ensuring that there are no

foreseeable threats to the continued

existence of any of the populations. No

downlisting criteria are given in the

recovery plan.

The Cumberlandian combshell

(Epioblasma brevidens) (Lea 1831) was

listed as an endangered species on

January 10, 1997 (62 FR 1647). This

mussel was historically distributed

throughout much of the Cumberlandian

Region of the Tennessee and

Cumberland River drainages in

Alabama, Kentucky, Tennessee, and

Virginia (Gordon 1991). Currently, only

small populations survive in a few river

reaches in both river systems (Gordon

1991). The species was last collected

from Muscle Shoals prior to 1925

(Ortmann 1925) and is presumed to be

extirpated from the shoal. Although

there is no recovery plan for the

Cumberlandian combshell, we

developed a recovery outline, which

briefly enumerates anticipated recovery

actions, prior to publishing the final

listing decision. The recovery outline

identifies reintroduction into historic

habitat as a method that would likely be

needed to recover the species.

The Cumberland monkeyface

pearlymussel (Quadrula intermedia)

(Conrad 1836) was listed as an

endangered species on June 14, 1976 (41

FR 24064). We completed a recovery

plan for the species in July 1984

(Service 1984a). This species was

historically known from 11 rivers in the

Tennessee River system (Service 1984a).

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32253

It was last collected from Muscle Shoals

around 1900 by R. E. Call and A. A.

Hinkley (Ortmann 1925) and is

presumed to be extirpated from the

shoal. Currently, the species survives

only at a few shoals in the Powell River,

Tennessee and Virginia, and the Elk and

Duck Rivers, Tennessee (Service 1984a).

The delisting objectives presented in the

recovery plan call for: (1) Restoring the

viability of the populations in the

Powell and Elk Rivers; (2) reestablishing

or discovering viable populations in two

additional rivers; and (3) ensuring that

there are no foreseeable threats to the

continued existence of any of the

populations. No downlisting criteria are

given in the recovery plan.

The dromedary pearlymussel (Dromus

dromas) (Lea 1845) was listed as an

endangered species on June 14, 1976 (41

FR 24064). We completed a recovery

plan for the species in July 1984

(Service 1984b). This species was

historically widespread in the

Cumberland and Tennessee River

systems (Bogan and Parmalee 1983). It

was last collected at Muscle Shoals

prior to 1931 (van der Schalie 1939) and

is presumed to be extirpated from the

shoal. The species survives at a few

shoals in the Powell and Clinch Rivers,

Tennessee and Virginia, and possibly in

the Cumberland River, Tennessee

(Service 1983b, Neves 1991). The

delisting objectives in the recovery plan

call for: (1) Restoring the viability of the

populations in the Clinch and Powell

Rivers; (2) reestablishing viable

populations in three additional rivers;

and (3) ensuring there are no foreseeable

threats to the continued existence of any

of the populations. No downlisting

criteria are provided in the recovery

plan.

The fine-rayed pigtoe (Fusconaia

cuneolus) (Lea 1840) was listed as an

endangered species on June 14, 1976 (41

FR 24064). A recovery plan for the

species was approved in September

1984 (Service 1984e). This species was

historically known from 15 Tennessee

River tributaries and is currently known

from 7 rivers (Service 1984e). The

species was last collected from Muscle

Shoals prior to 1925 (Ortmann 1925)

and is presumed to be extirpated from

the shoal. The delisting objectives call

for: (1) Restoring the viability of the

populations in the Clinch, Powell, and

North Fork Holston Rivers and in the

Little River and Copper Creek (Clinch

River tributaries); (2) reestablishing or

discovering one additional viable

population; and (3) ensuring there are

no foreseeable threats to the continued

existence of any of the populations. No

downlisting criteria are given.

The oyster mussel (Epioblasma

capsaeformis) (Lea 1834) was listed as

an endangered species on January 10,

1997 (62 FR 1647). This mussel was

historically distributed throughout

much of the Cumberlandian Region of

the Tennessee and Cumberland River

drainages (Gordon 1991). Currently,

only small populations survive in a few

river reaches in both river systems

(Gordon 1991). The species was last

collected from Muscle Shoals prior to

1925 (Ortmann 1925) and is presumed

to be extirpated from the shoal.

Although there is currently no recovery

plan for the oyster mussel, we

developed a recovery outline, which

briefly enumerates anticipated recovery

actions, prior to publishing the final

listing decision. The recovery outline

identified reintroduction into historic

habitat as a method that would likely be

needed to recover the species.

The Catspaw (purple cat’s paw

pearlymussel) (Epioblasma obliquata

obliquata) (Rafinesque 1820) was listed

as an endangered species on July 10,

1990 (55 FR 28210). We finalized a

recovery plan for the species in March

1992 (Service 1992). This oncewidespread species historically

occurred in the larger rivers of the Ohio

River system (Service 1992). The species

is currently known from two apparently

nonreproducing populations (the Green

River in Kentucky and the Cumberland

River in Tennessee) and one

reproducing population in Killbuck

Creek, Muskingum River system, Ohio.

It was last collected at Muscle Shoals by

A. E. Ortmann sometime prior to 1925

(Ortmann 1925) and is presumed no

longer to survive in this river reach. The

downlisting objectives in the recovery

plan call for: (1) The establishment of

four viable populations; (2)

establishment of two naturally produced

year classes in each of the four

populations; (3) completion of

biological studies on the species; and (4)

increasing the population density and/

or length of the river inhabited. The

delisting objectives call for the

establishment of six viable populations

in addition to criteria (2) through (4)

above.

The shiny pigtoe (Fusconaia cor)

(Conrad 1834) was listed as an

endangered species on June 14, 1976 (41

FR 24064). We completed a recovery

plan for the species in July 1984

(Service 1984f). This species was

historically known from the Tennessee

River and 10 of its tributaries. It is

currently known from five river

systems—the Clinch, Powell, North

Fork Holston, Elk, and Paint Rock

(Service 1984f). The species was last

collected at Muscle Shoals prior to 1925

(Ortmann 1925) and is presumed to be

extirpated from the shoal. The delisting

objectives call for: (1) Restoring the

viability of the populations in the

Clinch, Powell, North Fork Holston, and

Paint Rock Rivers; (2) reestablishing or

discovering one additional viable

population; and (3) ensuring there are

no foreseeable threats to the continued

existence of any of the populations. No

downlisting criteria are provided in the

recovery plan.

The tubercled blossom (pearlymussel)

(Epioblasma torulosa torulosa)

(Rafinesque 1820) was listed as an

endangered species on June 14, 1976 (41

FR 24064). We completed a recovery

plan for the species in January 1985

(Service 1985b). This species was

historically known from nine rivers in

the Ohio River system (Service 1985b).

The species was last collected at Muscle

Shoals around 1900 by A. A. Hinkley

(Ortmann 1925); it has not been

collected anywhere since 1969

(Stansbery 1976, Service 1985b).

However, we continue our efforts to

determine whether any extant

populations occur; thus, the species is

included in this NEP rule. If the species

is found and can be propagated, the area

below Wilson Dam could be considered

for a reintroduction effort without going

through a separate NEP rulemaking. No

downlisting or delisting criteria are

presented in the recovery plan.

However, the plan does call for recovery

efforts to be reevaluated if the species is

found.

The turgid blossom (pearlymussel)

(Epioblasma turgidula) (Lea 1858) was

listed as an endangered species on June

14, 1976 (41 FR 24064). A recovery plan

for the species was completed in

January 1985 (Service 1985b). This

widespread species was historically

known from 12 rivers in Arkansas,

Missouri, Tennessee, and Alabama

(Service 1985b). The species was last

collected at Muscle Shoals (its type

locality, along with the Cumberland

River in Tennessee) prior to 1925

(Ortmann 1925); it has not been

collected anywhere since the early

1960s (Stansbery 1971, Service 1985b).

However, we continue our efforts to

determine whether any extant

populations occur; thus, the species is

therefore included in this NEP rule. If

the species is found and can be

propagated, the area below Wilson Dam

could be considered for a reintroduction

effort without going through a separate

NEP rulemaking. No downlisting or

delisting criteria are presented in the

recovery plan. However, the plan does

call for recovery efforts to be

reevaluated if the species is found.

32254 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

The winged mapleleaf (mussel)

(Quadrula fragosa) (Conrad 1835) was

listed as an endangered species on June

20, 1991 (56 FR 28349). We completed

the final recovery plan for the species in

June 1997 (Service 1997a). This species

was historically reported from 34 rivers

in 12 States in the Mississippi River

drainage (Service 1997a). It is now

believed to be extirpated from all but

one remnant population in the St. Croix

River between Minnesota and

Wisconsin. The species was recorded in

the Tennessee River, Mussel Shoals,

Alabama by Ortmann (1924). The

downlisting objectives in the recovery

plan call for: (1) The existence of three

distinct viable populations in at least

two tributaries of the Mississippi River

basin and (2) the long-term protection of

all three populations. Delisting

objectives call for: (1) The existence of

five distinct viable populations and (2)

the long-term protection of all five

populations.

The yellow blossom (pearlymussel)

(Epioblasma florentina florentina) (Lea

1857) was listed as an endangered

species on June 14, 1976 (41 FR 24064).

We completed a recovery plan for the

species in January 1985 (Service 1985b).

This species was historically known

from 13 rivers in the Cumberland and

Tennessee River systems (Service

1985b). The species was last collected at

Muscle Shoals, its type locality, prior to

1925 (Ortmann 1925); it has not been

collected anywhere in over 50 years

(Stansbery 1971, Service 1985b).

However, we continue our efforts to

determine whether any extant

populations occur; thus, the species is

included in this NEP rule. If the species

is found and can be propagated, the area

below Wilson Dam could be considered

for a reintroduction effort without going

through a separate NEP rulemaking. No

downlisting or delisting criteria are

presented in the recovery plan;

however, it does call for the recovery

efforts to be reevaluated if the species is

found.

Anthony’s riversnail (Athearnia

anthonyi) was listed as an endangered

species on April 15, 1994 (59 FR 17994).

We completed the final recovery plan

for the species in August 1997 (Service

1997b). This snail was historically

found in the Tennessee River and the

lower reaches of some of its tributaries

from Muscle Shoals, Colbert and

Lauderdale Counties, Alabama,

upstream to the Clinch and Nolichucky

Rivers, Tennessee (Bogan and Parmalee

1983). Currently, two populations are

known to survive—one in Limestone

Creek, Limestone County, Alabama, and

one in the Tennessee River and the

lower portion of the Sequatchie River (a

tributary to this reach of the Tennessee

River), Marion County, Tennessee, and

Jackson County, Alabama (Service

1997b). It is apparently extirpated from

Muscle Shoals (Garner, personal

communication, 1997). The downlisting

objectives in the recovery plan call for:

(1) The establishment of four viable

populations; (2) establishment of two

naturally produced year classes in each

of the four populations; (3) completion

of biological studies on the species; (4)

documentation of noticeable

improvements in water and substratum

quality where habitat is degraded; (5)

protection of each of the populations

from present and foreseeable threats;

and (6) maintaining all four populations

as stable or increasing over a 10-year

period. The delisting objectives call for

the establishment of six viable

populations in addition to criteria (2)

through (5) above and for maintaining

six populations as stable or increasing

over a 15-year period.

The recovery objectives in the

recovery plans and recovery outlines for

the aforementioned species generally

agree that, to reach recovery: (1) Existing

populations should be restored to viable

levels; (2) the species should be

protected from threats to their

continued existence; and (3) viable

populations should be reestablished in

historic habitat. The number of secure,

viable populations (existing and

restored) needed to achieve recovery

varies from species to species,

depending on the extent of the species’

former 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 historic populations

is a critical component to the recovery

of all these species.

4. Reintroduction Site: In 1996, the

Director of the ADWFF indicated that,

due to recent improvements in water

quality, mollusk populations below

Guntersville, Wheeler, and Wilson

Dams were in excellent condition. He

indicated that, although several species

have been extirpated from these areas in

the past, both mussels and snails which

now occur there are abundant and a

healthy range of size classes are present.

Based on the improving status of

mollusks in these river reaches and the

fact that recent advances in mussel

culture techniques will likely lead to the

availability of endangered juvenile

mussels for release, the ADWFF Director

requested that we consider designating

NEP status for the reintroduction of

federally listed mussel and snail species

that historically existed in the riverine

habitat below these dams.

A Service biologist met with

representatives of the ADWFF in

January 1997 to discuss the possibility

of designating NEP status for the

reintroduction of federally listed

mollusks into the tailwaters of

Guntersville, Wheeler, and Wilson

Dams. The consensus at that meeting

was that: (1) The tailwaters of Wilson

Dam (the remains of Muscle Shoals)

provided the best opportunity for

successfully reestablishing federally

listed mollusks and (2) the tailwaters of

Guntersville and Wheeler Dams should

be considered for mollusk

reintroductions at a later time.

We will reintroduce populations of 16

mussels—Alabama lampmussel,

birdwing pearlymussel, clubshell,

cracking pearlymussel, Cumberland

bean (pearlymussel), Cumberlandian

combshell, Cumberland monkeyface

pearlymussel, dromedary pearlymussel,

fine-rayed pigtoe, oyster mussel,

catspaw (purple cat’s paw

pearlymussel), shiny pigtoe, tubercled

blossom (pearlymussel), turgid blossom

(pearlymussel), winged mapleleaf

(mussel), and yellow blossom

(pearlymussel)—and 1 freshwater snail,

Anthony’s riversnail, into the historical

habitat of the free-flowing reach of the

Tennessee River from about RM 258.0

(412.8 km) (1.4 RM [2.2 km]) below

Wilson Dam downstream to about RM

248.0 (396.8 km) (2 miles [3.2 km])

above the backwaters of Pickwick

Reservoir in Colbert and Lauderdale

Counties, Alabama. None of these

species is known to currently exist in

this river reach or in tributaries to this

reach.

5. Reintroduction Procedures: The

date the mollusks will be reintroduced,

the number of individuals to be

released, and the exact locations of the

releases within the NEP Area cannot be

determined at this time. Individual

endangered mussels that will be used

for these reintroductions will be

primarily artificially propagated

juveniles. However, it is possible that

wild adult stock of some mussels could

also be released into the area.

Mussel propagation and juvenile

rearing technology are currently being

developed, and juvenile endangered

mussels of some species could be

available for reintroduction next year.

The parent stock for juvenile mussels

that will be used for the reintroductions

will come from existing wild

populations, and in most cases, they

will be returned live to that wild

population. Under some circumstances,

adult endangered mussels could be

permanently relocated to propagation

facilities or could be moved directly

into the NEP Area. Anthony’s

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32255

riversnails will be collected from a large

naturally reproducing population

located in the Tennessee River, Jackson

County, Alabama, and Marion County,

Tennessee, and relocated directly into

the NEP.

The permanent removal of adults

from the wild for their use in

reintroduction efforts could occur when

one or more of the following conditions

exist: (1) Sufficient adult endangered

mollusks are available within a donor

population to sustain the loss without

jeopardizing the species; (2) the species

must be removed from an area because

of an imminent threat that is likely to

eliminate the population or specific

individuals present in an area; or (3)

when the population is not reproducing.

An enhancement of propagation or

survival permit under section 10

(a)(1)(A) of the Act will be issued before

any take occurs, and we will coordinate

these actions with the Service’s

appropriate lead regions and State

natural resources agencies.

Status of Reintroduced Populations

We determine that these reintroduced

mussel 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.

Location of Reintroduced Population

The NEP Area, which encompasses all

the sites for the planned

reintroductions, will be located in the

free-flowing reach of the Tennessee

River between Wilson Dam and the

backwaters of Pickwick Reservoir,

Colbert and Lauderdale Counties,

Alabama. The NEP Area is totally

isolated from existing populations of

these species by large reservoirs, and

none of these mollusks are known to

occur in reservoir habitat. These

reservoirs will act as barriers to the

expansion of these species upstream or

downstream in the main stem of the

Tennessee River and ensure that these

NEPs remain geographically isolated

and easily distinguishable from existing

wild populations.

Management

We do not believe these

reintroductions will conflict with

existing or proposed human activities or

hinder public use 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.

If any of the reintroduced endangered

mollusks move beyond the current

boundaries of this NEP Area, the

animals will be presumed to have come

from the NEP Area. In that case, the rule

will be amended and the boundaries of

the NEP Area will be enlarged to

include the entire range of the expanded

population.

Previous Federal Actions

On June 18, 1997, we mailed letters to

54 potentially affected congressional

offices, Federal and State agencies, local

governments, and interested parties to

notify them that we were considering

proposing NEP status for 17 mollusks.

We received six written responses. The

majority of these comments were very

supportive of the potential

reintroduction efforts, and few concerns

were raised.

On May 27, 1999, we published the

proposed rule in the Federal Register

(64 FR 28779) to designate NEP status,

under section 10(j) of the Act, for the

reintroduction of the aforementioned 16

mussels and 1 snail into the Tennessee

River below Wilson Dam in Alabama.

Additionally, we announced this

proposal in faxes dated May 26, 1999,

in letters dated May 27, 1999, and in a

legal notice published in the Times

Daily, Florence, Alabama, on June 12,

1999. Those documents notified affected

congressional offices, the Governor of

Alabama, Federal and State agencies,

local governments, scientific

organizations, and interested parties of

the proposed action, and requested

comments and information that might

contribute to the development of a final

determination.

Summary of Comments and

Recommendations

In the May 27, 1999, proposed rule

(64 FR 28779), we opened a 60-day

public comment period. We received

two responses. These comments did not

result in any changes to the final rule.

Key issues raised in the comments are

presented below.

Issue 1: Concerns were raised that a

project by the Shoal Economic

Development Authority (SEDA) along

the Tennessee River, below the Colbert

Steam Plant in Colbert County,

Alabama, might be impacted by the NEP

designation.

Our Response: Because of the

regulatory flexibility provided through a

NEP designation and the fact that the

project is downstream of the NEP Area,

we do not believe the reintroductions

will have any effect on SEDA’s project.

The SEDA project, which starts at about

RM 244 (390.4 km), is approximately 2

miles (3.2 km) below the downstream

extent of the NEP Area (RM 246 [393.6

km]) and 3 to 4 miles (4.8 to 6.4 km)

below the area where the species will be

released. Because of habitat suitability

problems, we do not expect these

reintroduced species to inhabit the river

below RM 246 (393.6 km). However, if

they did move downstream into

Pickwick Reservoir, we would assume

that the animals came from the existing

NEP Area, and we would amend the

rule to extend the NEP Area boundaries

downstream to include the expanded

population.

Issue 2: The TVA was generally

supportive of the NEP designation and

offered their assistance in the

reintroduction effort. They again

expressed concerns about the long-term

viability of mussels in this river reach

but stated that their concern had been

noted in the proposed rule. The TVA is

concerned that, although reintroduced

Cumberlandian mussel species might

survive below Wilson Dam, they might

not be able to reproduce there.

Our Response: Based on the improved

reproductive success of the mussel

fauna below Wilson Dam, we are

optimistic that at least some of the

Cumberlandian species will reproduce.

However, even if these species are

unable to reproduce, the establishment

of nonreproducing populations of listed

Cumberlandian mussels will assist in

the recovery effort. Mussels are longlived (40 years or more); thus, any

surviving mussels could be available to

researchers and managers for a number

of years after they are reintroduced.

Required Determinations

Regulatory Planning and Review

In accordance with the criteria in

Executive Order 12866, the final rule to

designate NEP status for 16 endangered

mussels and 1 endangered aquatic snail

in the free-flowing reach of the

Tennessee River below Wilson Dam in

Colbert and Lauderdale Counties,

32256 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

Alabama, is not a significant regulatory

action subject to Office of Management

and Budget review. This rule will not

have an annual economic effect of $100

million and will not have an adverse

effect on any economic sector,

productivity, jobs, the environment, or

other units of government. The area

affected by this rule consists of a very

limited and discrete geographic segment

(only 12 RM (19 km)) of the Tennessee

River in northern Alabama. Therefore, a

cost-benefit and economic analysis is

not required.

Shellfish harvesting in the United

States is dominated by small firms. Of

the 441 firms included in Standard

Industrial Code 0913 for

‘‘establishments primarily engaged in

the catching or taking of shellfish,’’ 421

have fewer than 20 employees, and 353

have fewer than 5 employees. These

figures include saltwater shellfishing

(lobsters, crabs, clams, etc.), so

freshwater mussel harvesting is only a

fraction of this small industry (Office of

Advocacy, U.S. Small Business

Administration, based on data provided

by the Department of Commerce, Bureau

of the Census).

A recent die-off of the pearl oyster

stock in Japan has almost eliminated the

market for freshwater mussels this year.

In fiscal year 1998, there were 79

licensed mussel harvesters in the entire

State of Alabama but almost no sales. In

normal years, there may be as many as

270 mussel harvesters. County level

data is not available.

Because there are no expected

impacts or restrictions to existing

human uses of the Tennessee 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 will not raise novel legal or

policy issues. Since 1984, we have

promulgated 10(j) rules for many other

listed threatened and endangered

species in various localities. Such 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.). This rule is not

expected to have any impact on the use

of the river. Mussels are harvested from

the relevant reach, primarily by diving

from one- or two-person boats.

Harvesters are seeking larger mussels of

a dozen specific permitted species to be

used as seeds in the Japanese cultured

pearl industry. Several endangered

mussels still occur in the area, and

divers are careful to identify species on

site in order to avoid carrying extra

weight to the surface. The addition of

NEP species is not expected to

complicate this task. Other river

activities will not be affected.

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 will not have an annual effect

on the economy of $100 million or more

for reasons outlined above. It will not

cause a major increase in costs or prices

for consumers, individual industries,

Federal, State, or local government

agencies, or geographic regions. The

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.

Unfunded Mandates Reform Act

The NEP designation will not place

any additional requirements on any city,

county, or other local municipalities.

The ADWFF, which manages the

aquatic mollusks in the Tennessee River

below Wilson Dam, requested that we

consider this reintroduction. However,

they will not be required by the

Endangered Species Act to specifically

manage for any reintroduced species.

Accordingly, this rule will not

‘‘significantly or uniquely’’ affect small

governments. A Small Government

Agency Plan is not required. Because

this rulemaking does not require any

action be taken by local or State

government or private entities, we have

determined and certify pursuant to the

Unfunded Mandates Reform Act, 2,

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

will not impose a cost of $100 million

or more in any given year on local or

State governments or private entities

(i.e., it is not a ‘‘significant regulatory

action’’ under the Unfunded Mandates

Reform Act).

Takings

In accordance with Executive Order

12630, this rule does not have

significant takings implications. A

takings implication assessment is not

required because this rule (1) will not

effectively compel a property owner to

suffer a physical invasion of property

and (2) will not deny all economically

beneficial or productive use of the land.

This rule will substantially advance a

legitimate government interest

(conservation and recovery of listed

freshwater mussel and snail species)

and will not present a bar to all

reasonable and expected beneficial use

of private property. Because of the

regulatory flexibility provided by NEP

designations under section 10(j) of the

Act, we do not believe the

reintroduction of these mollusks would

conflict with existing or proposed

human activities or hinder public use of

the Tennessee River system.

Federalism

In accordance with Executive Order

13132, this rule does not have

significant Federalism effects. This rule

will not have substantial direct effects

on the States in their 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 Alabama on the reintroduction of

freshwater mussels into the Tennessee

River. The State wildlife agency

(ADWFF) requested that we undertake

this rulemaking in order to assist the

State in restoring and recovering its

native aquatic fauna. Achieving the

recovery goals for these 17 species will

contribute to their eventual delisting

and their return to State management.

No intrusion on State policy or

administration is expected, roles or

responsibilities of Federal or State

governments will not change, and fiscal

capacity will not be substantially

directly affected. The 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. Therefore, this rule does not

have significant Federalism effects or

implications to warrant the preparation

of a Federalism Assessment pursuant to

the provisions of Executive Order

13132.

Paperwork Reduction Act

This rule contains no information

collection. An agency may not conduct

or sponsor, and a person is not required

to respond to a collection of information

unless it displays a current valid OMB

control number.

Civil Justice Reform

In accordance with Executive Order

12988, the Office of the Solicitor has

determined that this rule does not

unduly burden the judicial system and

does meet the requirements of sections

3(a) and 3(b)(2) of the Order.

National Environmental Policy Act

We have determined that the issuance

of this rule is categorically excluded

under our National Environmental

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32257

Policy Act procedures (516 DM 6,

Appendix 1.4 B(6)).

References Cited

Bogan, A.E., and P.W. Parmalee. 1983.

Tennessee’s Rare Wildlife, Volume II:

The Mollusks. 123 pp.

Gooch, C.H., W.J. Pardue, and D.C. Wade.

1979. Recent mollusk investigations on

the Tennessee River, 1978. Tennessee

Valley Authority, Water Quality and

Ecology Branch. 126 pp.

Goodrich, C. 1931. The pleurocerid genus

Eurycaelon. Occasional Papers of the

Museum of Zoology 223:1–11.

Gordon, M.E. 1991. Species accounts for

Cumberland elktoe (Alasmidonta

atropurpurea), Cumberlandian

combshell (Epioblasma brevidens),

oyster mussel (Epioblasma

capsaeformis), rough rabbitsfoot

(Quadrula cylindrica strigillata), and

purple bean (Villosa perpurpurea).

Unpublished reports to The Nature

Conservancy. 75 pp.

Isom, B.G. 1969. The mussel resources of the

Tennessee River. Malacologia 7(2–3):

397–425.

Neves, R.J. 1991. Mollusks. IN: Virginia’s

Endangered Species, Proceedings of a

Symposium. Coordinated by Karen

Terwilliger. McDonald & Woodward

Publishing Co., Blacksburg, VA. 672 pp.

Ortmann, A.E. 1918. The nayades (freshwater

mussels) of the upper Tennessee

drainage with notes on synonymy and

distribution. Proceedings of the

American Philosophical Society 57:521–

626.

———. 1924. Discussions and

Correspondence—Mussel Shoals.

Science 60(1564):565–566.

———. 1925. The naiad fauna of the

Tennessee River system below Walden

Gorge. The American Midland Naturalist

9(8):321–372.

Scruggs, G.D. 1960. Status of freshwater

mussel stocks in the Tennessee River.

U.S. Fish and Wildlife Service, Special

Report, Fisheries, 370:1–40.

Stansbery, D.H. 1964. The Mussel (Muscle)

Shoals of the Tennessee River revisited.

Annual Report for 1964 of the American

Malacological Union: 25–28.

———. 1971. Rare and endangered mollusks

in Eastern United States. IN: S.E.

Jorgenson and R.E. Sharp (Ed.).

Proceedings of a Symposium on Rare

and Endangered Mollusks (naiades), U.S.

Bureau of Sport Fisheries and Wildlife,

U.S. Fish and Wildlife Service,

Department of the Interior, Twin Cities,

MN. 79 pp.

———. 1976. Naiad mollusks. IN:

Endangered and Threatened Plants and

Animals of Alabama. Bulletin, Alabama

Museum of Natural History, No. 2:42–52.

Tennessee Valley Authority. 1993. Tennessee

Valley reservoir and stream quality—

1993. Summary of vital signs and use

suitability monitoring. Vol. 1. 200 pp.

U.S. Fish and Wildlife Service. 1984a.

Cumberland Monkeyface Pearlymussel

Recovery Plan. Atlanta, GA. 59 pp.

———. 1984b. Dromedary Pearlymussel

Recovery Plan. Atlanta, GA. 58 pp.

———. 1984c. Birdwing Pearlymussel

Recovery Plan. Atlanta, GA. 56 pp.

———. 1984d. Cumberland Bean

Pearlymussel Recovery Plan. Atlanta,

GA. 58 pp.

———. 1984e. Fine-rayed Pigtoe Recovery

Plan. Atlanta, GA. 67 pp.

———. 1984f. Shiny Pigtoe Recovery Plan.

Atlanta, GA. 67 pp.

———. 1985a. Alabama Lampmussel

Recovery Plan. Atlanta, GA. 41 pp.

———. 1985b. Tubercled-blossom

Pearlymussel, Turgid-blossom

Pearlymussel, and Yellow-blossom

Pearlymussel Recovery Plan. Atlanta,

GA. 42 pp.

———. 1991. Cracking Pearlymussel

Recovery Plan. Atlanta, GA. 25 pp.

———. 1992. Purple Cat’s Paw Pearlymussel

Recovery Plan. Atlanta, GA. 26 pp.

———. 1993a. Clubshell and Northern

Riffleshell Recovery Plan. Hadley, MA.

55 pp.

———. 1997a. Winged Mapleleaf Mussel

(Quadrula fragosa) Recovery Plan. Ft.

Snelling, MN. 69 pp.

———. 1997b. Recovery Plan for Anthony’s

Riversnail. Atlanta, GA. 21 pp.

van der Schalie, H. 1939. Additional notes on

the naiades (freshwater mussels) of the

lower Tennessee River. The American

Midland Naturalist 22:452–457.

Author

The principal author of this 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.

Regulation Promulgation

Accordingly, we amend part 17,

subchapter B of chapter I, title 50 of the

U.S. Code of Federal Regulations, as set

forth below:

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 § 17.11(h), by revising the

existing entries for ‘‘Bean, Cumberland

(pearlymussel)’’; ‘‘Blossom, tubercled

(pearlymussel)’’; ‘‘Blossom, turgid

(pearlymussel)’’; ‘‘Blossom, yellow

(pearlymussel)’’; ‘‘Catspaw (=purple

cat’s paw pearlymussel)’’; ‘‘Clubshell’’;

‘‘Combshell, Cumberlandian’’;

‘‘Lampmussel, Alabama’’; ‘‘Mapleleaf

winged (mussel)’’; ‘‘Monkeyface,

Cumberland (pearlymussel)’’; ‘‘Mussel,

oyster’’; ‘‘Pearlymussel, birdwing’’;

‘‘Pearlymussel, cracking’’;

‘‘Pearlymussel, dromedary’’; ‘‘Pigtoe,

fine-rayed’’; and, ‘‘Pigtoe, shiny’’ under

CLAMS and for ‘‘Riversnail, Anthony’s’’

under ‘‘SNAILS’’ to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

*******

CLAMS

*******

Bean, Cumberland

(pearlymussel).

Villosa (= Micromya)

trabalis.

U.S.A. (AL, KY, TN,

VA).

NA ........................... E 15 NA NA

32258 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

Blossom, tuberoled

(pearlmyussel).

Epioblasma

(=Dysnomia)

torulosa torulosa.

U.S.A. (AL, IL, IN,

KY, TN, WV).

NA ........................... E 15 NA NA

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

Blossom, turgid

(pearlymussel).

Epioblasma

(=Dysnomia)

turgidula.

U.S.A. (AL, TN) ....... NA ........................... E 15 NA NA

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

Blossom, yellow

(pearlymussel).

Epioblasma

(=Dysnomia)

florentina

florentina.

U.S.A. (AL, TN) ....... NA ........................... E 15 NA NA

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32259

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

Catspaw, (=purple

cat’s paw

pearlymussel).

Epioblasma

(=Dysnomia)

(=sulcata sulcata).

U.S.A. (AL, IL, IN,

KY, OH, TN).

NA ........................... E 394 NA NA

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

Clubshell ................... Pleurobema clava ... U.S.A. (AL, IL, IN,

KY, MI, OH, PA,

TN, WV).

NA ........................... E 488 NA NA

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

Combshell,

Cumberlandian.

Epioblasma

brevidens.

U.S.A. (AL, KY, MS,

TN, VA).

NA ........................... E 602 NA NA

32260 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

Lampmussel, Alabama.Lampsilis virescens U.S.A. (AL, TN) ....... NA ........................... E 15 NA NA

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

Mapleleaf, winged

(mussel).

Quadrula fragosa .... U.S.A. (AL, IA, IL,

IN, KY, MN, MO,

NE, OH, OK, TN,

WI).

NA ........................... E 426 NA NA

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

Monkeyface, Cumberland

(pearlymussel).

Quadrula intermedia U.S.A. (AL, TN, VA) NA ........................... E 15 NA NA

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32261

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

Mussel, oyster .......... Epioblasma

capsaeformis.

U.S.A. (AL, GA, KY,

NC, TN, VA).

NA ........................... E 602 NA NA

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

Pearlymussel,

birdwing.

Conradilla caelata ... U.S.A. (AL, TN, VA) NA ........................... E 15 NA NA

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

Pearlymussel, cracking.

Hemistena

(=Lastena) lata.

U.S.A. (AL, IL, IN,

KY, OH, TN, VA).

NA ........................... E 366 NA NA

32262 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

Pearlymussel, dromedary.Dromus dromas ...... U.S.A. (AL, KY, TN,

VA).

NA ........................... E 15 NA NA

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

Pigtoe, fine-rayed ..... Fusconaia cuneolus U.S.A. (AL, TN, VA) NA ........................... E 15 NA NA

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

Pigtoe, shiny ............. Fusconaia cor

(=edgariana).

U.S.A. (AL, TN, VA) NA ........................... E 15 NA NA

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32263

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

SNAILS

*******

Riversnail, Anthony’s Athearnia anthonyi .. U.S.A. (AL, GA, TN) NA ........................... E 538 NA NA

Do ...................... ......do ...................... ......do ...................... U.S.A. (AL—The

free-flowing reach

of the Tennessee

R. from the base

of Wilson Dam

downstream to the

backwaters of

Pickwick Reservoir [about 12

RM (19 km)] and

the lower 5 RM [8

km] of all tributaries to this reach

in Colbert and

Lauderdale Cos.,

see 17.85(a)).

XN .................... NA 17.85(a)

*******

3. Add § 17.85 to read as follows:

§ 17.85 Special rules—invertebrates.

(a) Cumberland bean (pearlymussel)

(Villosa trabalis), tubercled blossom

(pearlymussel) (Epioblasma torulosa

torulosa), turgid blossom (pearlymussel)

(Epioblasma turgidula), yellow blossom

(pearlymussel) (Epioblasma florentina

florentina), catspaw (purple cat’s paw

pearlymussel) (Epioblasma obliquata

obliquata), clubshell (Pleurobema

clava), Cumberlandian combshell

(Epioblasma brevidens), Alabama

lampmussel (Lampsilis virescens),

winged mapleleaf (mussel) (Quadrula

fragosa), Cumberland monkeyface

(pearlymussel) (Quadrula intermedia),

oyster mussel (Epioblasma

capsaeformis), birdwing pearlymussel

(Conradilla caelata), cracking

pearlymussel (Hemistena lata),

dromedary pearlymussel (Dromus

dromas), fine-rayed pigtoe (Fusconaia

cuneolus), shiny pigtoe (Fusconaia cor),

Anthony’s riversnail (Athearnia

anthonyi).

(1) Where are these mollusks

designated as nonessential experimental

populations (NEPs)?

(i) The NEP Area for these 17

mollusks is within the species’ historic

ranges, and is defined as follows: The

free-flowing reach of the Tennessee

River from the base of Wilson Dam

downstream to the backwaters of

Pickwick Reservoir (river mile (RM)

259.4 [414.0 km] to RM 246.0 [393.6 km]

and includes the lower 5 RM (8 km) of

all tributaries to this reach in Colbert

and Lauderdale Counties, Alabama.

(ii) None of the identified species are

known to exist in any of the tributaries

to the free-flowing reach of the

Tennessee River below Wilson Dam or

from below the backwaters of Pickwick

Reservoir, Colbert and Lauderdale

Counties, Alabama. In the future, if any

of the 17 mollusks are found upstream

of the lower 5 RM (8 km) of these

tributaries or downstream into Pickwick

Reservoir, we will presume the animals

came from the reintroduced NEP, and

we will amend this rule and enlarge the

boundaries of the NEP Area to include

the entire range of the expanded

population.

(iii) We do not intend to change the

NEP designations to ‘‘essential

experimental,’’ ‘‘threatened,’’ or

‘‘endangered’’ within the NEP Area.

Additionally, we will not designate

critical habitat for these NEPs, as

provided by 16 U.S.C. 1539(j)(2)(C)(ii).

(2) What activities are not allowed in

the NEP Area?

(i) Except as expressly allowed in this

rule, all the prohibitions of 17.31(a) and

(b) apply to the mollusks identified in

this special rule.

(ii) Any manner of take not described

under paragraph (a)(3) of this section

will not be allowed in the NEP Area. We

may refer the unauthorized take of these

species to the appropriate authorities for

prosecution.

32264 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

(iii) You may not possess, sell,

deliver, carry, transport, ship, import, or

export by any means whatsoever any of

the identified 17 mollusks, or parts

thereof, that are taken or possessed in

violation of these regulations or in

violation of the applicable State fish and

wildlife laws or regulations or the Act.

(iv) You may not attempt to commit,

solicit another to commit, or cause to be

committed any offense defined in this

paragraph (a).

(3) What take is allowed in the NEP

Area?

(i) Take of these species that is

accidental and incidental to an

otherwise lawful activity such as

fishing, boating, commercial navigation,

trapping, wading, or mussel harvesting,

is allowed.

(ii) Any individual collecting or

harvesting mussels must check their

collection prior to leaving the

immediate area and return any NEP

mussels to the site where they were

obtained.

(4) How will the effectiveness of these

reintroductions be monitored?

We will prepare periodic progress

reports and fully evaluate these

reintroduction efforts after 5 and 10

years to determine whether to continue

or terminate the reintroduction efforts.

Dated: May 31, 2001.

Marshall P. Jones, Jr.

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 01–14878 Filed 6–13–01; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 20 and 21

RIN 1018–AI00

Migratory Bird Hunting; Regulations

Designed to Reduce the Mid-Continent

Light Goose Population

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: This rule is intended to notify

the public of a clarification of the

expiration date of regulations imposed

by Congress to reduce the population of

mid-continent light geese (MCLG). In

this rule we clarify the expiration date

of special regulations pertaining to

hunting methods (electronic calls and

unplugged shotguns) for taking midcontinent light geese. We also clarify the

expiration date of the conservation

order for the reduction of the midcontinent light goose population.

DATES: This rule takes effect

immediately upon publication on June

14, 2001.

ADDRESSES: Copies of the

Environmental Assessment are available

by writing to the Chief, Division of

Migratory Bird Management, U.S. Fish

and Wildlife Service, Dept. of the

Interior, ms 634—ARLSQ, 1849 C Street

NW., Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Jon

Andrew, Chief, Division of Migratory

Bird Management, Dept. of the Interior,

ms 634—ARLSQ, 1849 C Street, NW.,

Washington, DC 20240. (703) 358–1714.

SUPPLEMENTARY INFORMATION: The

Service (or ‘‘we’’) promulgated

regulations on February 16, 1999, (64 FR

7507; 64 FR 7517) that authorized

additional methods of take of MCLG and

established a conservation order for the

reduction of the MCLG population. In

issuing those regulations, we indicated

that we would initiate preparation of an

Environmental Impact Statement (EIS)

on light goose management beginning in

2000. The light goose regulations were

subsequently challenged in a United

States District Court by several groups.

Though the judge refused to

preliminarily enjoin the program, he did

indicate a likelihood that the plaintiffs

might prevail on the EIS issue when the

lawsuit proceeded. In light of our earlier

commitment to prepare an EIS on light

goose management and to preclude

further litigation on the issue, we

published a Notice of Intent to begin

immediate preparation of the EIS on

May 13, 1999 (64 FR 26268).

Subsequent to this action, on June 17,

1999, we withdrew the regulations

promulgated on February 16, 1999 (64

FR 32778). On November 10, 1999,

Congress passed the Arctic Tundra

Habitat Emergency Conservation Act

(Act), which effectively reinstated the

MCLG regulations that we withdrew on

June 17, 1999. On December 20, 1999

(64 FR 71236) we published a final rule

that reinstated the MCLG regulations in

the CFR and stipulated that such

regulations would remain in effect until

May 15, 2001 at the latest. However, this

stipulation is contrary to the expiration

date that Congress mandated in the Act.

Background

Lesser snow (Anser caerulescens

caerulescens) and Ross’ (Anser rossii)

geese that primarily migrate through the

Mississippi and Central Flyways are

collectively referred to as mid-continent

light geese (MCLG). MCLG breed in the

central and eastern arctic and subarctic

regions of northern Canada. The total

MCLG population is experiencing a high

population growth rate and has become

seriously injurious to its Arctic and subArctic breeding grounds through the

feeding actions of geese. Our

management goal is to reduce the MCLG

population by 50% by the year 2005 in

order to prevent further habitat

degradation and impacts to other

species.

On February 16, 1999, we published

rules that: (1) authorized additional

methods of take of MCLG (electronic

calls and unplugged shotguns; 64 FR

7507); and (2) created a conservation

order for the reduction of the MCLG

population (64 FR 7517). These actions

were designed to reduce the population

of MCLG over a period of several years

in order to bring the population to a

level that their breeding habitat can

support. We prepared an Environmental

Assessment (EA) in support of this

program, which resulted in a Finding of

No Significant Impact.

On February 25, 1999, several groups

filed a complaint in the District Court

for the District of Columbia seeking an

injunction against these regulations. On

March 2, 1999, the plaintiffs filed a

motion for a preliminary injunction

against the two rules cited above. The

lawsuit alleged that we had

implemented the rules without adequate

scientific evidence that MCLG were

causing habitat destruction, that we did

not have the authority under the

Migratory Bird Treaty to allow take of

MCLG after March 10 (the latest date

allowable under the Treaty), and that an

EIS should have been prepared prior to

implementation of the rules. In his

memorandum opinion the judge

indicated that ‘‘the scientific evidence

regarding the overpopulation of snow

geese strongly favors FWS’’ and that we

had exercised a reasonable use of our

authority under the Migratory Bird

Treaty Act to initiate population control

measures. Although the judge refused to

issue an injunction, he did indicate a

likelihood that plaintiffs might succeed

on their argument that an EIS should

have been prepared. In order to avoid

further litigation, and because we had

earlier indicated we would begin

preparing in the year 2000 an EIS on the

larger, long-term program, we decided

to withdraw the regulations and begin

immediate preparation of the EIS. We

concluded the public scoping phase of

the EIS process on November 22, 1999.

We anticipate publication of a draft EIS

in the summer of 2001.

On November 10, 1999, Congress

passed the Arctic Tundra Habitat

Emergency Conservation Act (Pub. L.

106–108) to ‘‘reduce the population of

mid-continent light geese,’’ and ‘‘to

assure the long-term conservation of

mid-continent light geese and the