2002 Federal Register, 67 FR 52420; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: August 12, 2002 (Volume 67, Number 155)]
[Rules and Regulations]
[Page 52420-52428]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au02-17]

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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; Establishment of
Nonessential Experimental Population Status and Reintroduction of Four
Fishes in the Tellico River

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), plan 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, Monroe County, Tennessee.
These reestablished populations will be classified as nonessential
experimental populations (NEPs) in accordance with section 10(j) of the
Endangered Species Act of 1973, as amended (Act). Based on an
evaluation by species experts, none of these species are currently
known to exist in this river reach or its tributaries.

[[Page 52421]]

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' historic ranges. This rule provides a plan for
establishing the NEPs and provides for limited allowable legal taking
of the aforementioned fishes within the defined NEP area.

DATES: The effective date of this rule is September 11, 2002.

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. Bob Butler at 828/258-3939, Ext.
235; facsimile 828/258-5330; or e-mail bob_butler@fws.gov.

SUPPLEMENTARY INFORMATION:

Background

1. Legislative: Congress made significant changes to the 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 endangered wildlife. ``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. Service regulations (50 CFR 17.31)
generally extend the prohibition of take to threatened wildlife.
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, ensure that any action they
authorize, fund, or carry out is not likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of designated critical habitat. Section 7 of the Act does
not affect activities undertaken on private land 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 normally 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 an NEP 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 habitat. When NEPs are
located outside a National Wildlife Refuge or National Park, only two
provisions of section 7 apply--section 7(a)(1) and section 7(a)(4). In
these instances, NEPs provide additional flexibility because Federal
agencies are not required to consult with us under section 7(a)(2).
Section 7(a)(4) requires Federal agencies to confer with the Service on
actions that are likely to jeopardize the continued existence of a
proposed species. However, since we determined that the experimental
population 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 outside a National Wildlife Refuge or
National Park.
Individuals used to establish an experimental population may come
from a donor population, provided their removal will not create adverse
impacts upon the parent population and provided appropriate permits are
issued in accordance with our regulations (50 CFR 17.22) prior to their
removal.
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 (NPS),
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 TRM 19 (30.4 km))
and TRM 33 (52.8 km), near the Tellico Ranger Station, 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.

[[Page 52422]]

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 (reclassification from endangered to threatened
status) criteria 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 that 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 that 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 the 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: (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:
(1) Protect and enhance existing populations and/or reestablish
populations so that 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 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 indications are that it may become reestablished
(Rakes et al. 1998).
The delisting criteria in the Spotfin Chub Recovery Plan are: (1)
protect and enhance existing populations and/or reestablish populations
so that viable populations exist in the Buffalo River

[[Page 52423]]

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) 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 an
NEP area for 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 the reintroduction of these
fishes into the Tellico River has 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 display any biological
attributes that suggest they could become a problem if successfully
established into the Tellico River.
We will 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 TRM 19 (30.4 km)) and TRM 33 (52.8 km), near the Tellico
Ranger Station, Monroe County, Tennessee, and designate these
populations as NEPs. This area is identified as the NEP area.
5. Reintroduction Procedures: At this time we cannot determine the
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, is still in development.
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

The status of the extant populations of the duskytail darter, smoky
madtom, yellowfin madtom, and spotfin chub is such that individuals can
be removed to provide a donor source for reintroduction without
appreciably reducing the likelihood of the species' survival in the
wild. Therefore, we have determined that these reintroduced fish
populations are not essential to the continued existence of the
species. We will ensure, through our section 10 permitting 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.
In addition, 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 reintroduction of these four fish species into the
Tellico River, Monroe County, Tennessee, will be within the designated
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. Special rules for experimental populations 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 the designated NEP area, we would presume that the animals had
come from the reintroduced populations. The rule would then be amended,
and the boundaries of the NEP area would be enlarged to include the
entire range of the expanded population.

Previous Federal Actions

On June 26, 1998, we mailed letters to 67 potentially affected
congressional offices, Federal and State agencies, local government
offices, and interested parties that we were considering proposing NEP
status for four fish species in the Tellico River. We received four
written responses.
The USFS, which is significantly involved in reintroduction efforts
for these fishes into Abrams Creek, supported the 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 (TDEC),

[[Page 52424]]

supported the proposed reintroduction of the four fishes into the
Tellico River. They believed 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 supported
the proposed 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 supported the
proposed reintroductions.
On June 8, 2001, we published the proposed rule in the Federal
Register (66 FR 30853) to designate NEP status, under section 10(j) of
the Act, for the reintroduction of the aforementioned four fishes into
the Tellico River, Monroe County, Tennessee. Additionally, we announced
this proposal in facsimiles dated June 7, 2001; in letters dated June
8, 2001; and in a legal notice published in the Knoxville News-
Sentinel, Knoxville, Tennessee, on June 21, 2001. Those documents
notified affected congressional offices, the Governor of Tennessee,
Federal and State agencies, local government offices, 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 June 8, 2001, proposed rule (66 FR 30853), we opened a 60-
day comment period. We received eight responses--five supported the
designation as an NEP, one supported the reintroduction but requested
the experimental population be designated ``essential'' rather than
``nonessential,'' and two respondents expressed concern that the
designation would adversely impact recreational activities in the
Tellico River watershed. These comments did not result in any changes
to the final rule. Key issues raised and our responses are presented
below.
Issue 1: Two respondents expressed concern that the NEP designation
would adversely impact recreational activities in the Tellico River
watershed. They were especially concerned with the impact to off-road-
vehicle use in the Cherokee National Forest portion of the watershed.
Response: Because of the regulatory flexibility provided through an
NEP designation, we do not believe the reintroduction of these fishes
will have any adverse impact on recreational or other legal activities
in the Tellico River watershed (see ``Required Determinations'' and
``Management'' sections). Federal agencies, like the USFS, are not
required under the Act to change any recreational uses in the Cherokee
National Forest to protect the continued existence of these fishes in
the Tellico River watershed. State and local agencies, communities, and
private citizens would not be required to change current uses in the
watershed to protect the fishes in this NEP.
Issue 2: One respondent stated that we should classify the
experimental populations as ``essential'' instead of ``nonessential.''
Response: In our August 27, 1984, final rule regarding experimental
populations (49 FR 33885), we stated that, in some situations, the
status of the extant population is such that individuals can be removed
to provide a donor source for reintroduction without creating adverse
impacts on the parent population. This is especially true if captive
propagation efforts are providing individuals for release into the
wild. Further, we cannot ignore Congressional intent in explaining the
``essential'' determination:

``* * * The Secretary shall consider whether the loss of the
experimental population would be likely to appreciably reduce the
likelihood of survival of that species in the wild. If the Secretary
determines that it would, the population will be considered essential
to the continued existence of the species. The level of reduction
necessary to constitute ``essentiality'' is expected to vary among
listed species, and in most cases, experimental populations will not be
essential.''

H.R. Conf. Rep. No. 835, supra at 34 [emphasis added]. An ``essential''
population will be a special case, not the general rule.
The status of the extant populations of the duskytail darter, smoky
madtom, yellowfin madtom, and spotfin chub is such that individuals can
be removed to provide a donor source for reintroduction without
appreciably reducing the likelihood of the species' survival in the
wild. Therefore, we have determined that these reintroduced fish
populations are not essential to the continued existence of the
species. We will ensure, through our section 10 permitting 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.
Issue 3: Four respondents (TVA, TWRA, TDEC, and SARI) expressed
support for the designation of the experimental population as
``nonessential'' because it provides greater management flexibility.
Response: We agree that an NEP designation provides more management
flexibility than an essential experimental population designation. We
also believe that the NEP designation is appropriate for the reasons
discussed in our response to Issue 2 above.

Peer Review

In conformance with our policy on peer review, published on July 1,
1994 (59 FR 34270), we provided copies of the proposed rule to ten
specialists in order to solicit comments on the scientific data and
assumptions relating to the supportive biological and ecological
information for this NEP rule. The purpose of such review is to ensure
that the NEP designation decision is based on the best scientific
information available, as well as to ensure that reviews by appropriate
experts and specialists are included into the review process of
rulemakings. Although comments were solicited from ten specialists,
none of these reviewers provided comments on the proposed rule.
However, we did receive comments expressing support for the designation
from the State (e.g., TWRA, TDEC), Tennessee Chapter of the American
Fisheries Society, and SARI, and we are working closely with TWRA,
USFS, NPS, TVA, and the TA on our reintroduction efforts, as mentioned
above.

Required Determinations

Regulatory Planning and Review

This rule is not a significant rule as determined 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,

[[Page 52425]]

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 are
expected as a result of this rule.
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 of entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients. No entitlements, grants, user fees, or loan programs
are associated with this rule.
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 businesses engaged in
activities along the affected stream reaches are small businesses, 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

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 activities along the affected stream reaches, 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 containing the information required
by the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) is not
required.

Takings (E.O. 12630)

In accordance with Executive Order 12630, this 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 an NEP area. For example, this rule allows for the taking of
these reintroduced fishes when such take is incidental to an otherwise
legal activity, such as recreation (e.g., fishing, boating, wading,
trapping, swimming), forestry, agriculture, and other activities that
are in accordance with Federal, State, and local laws and regulations.
Because of the substantial regulatory relief provided by NEP
designations, we do not believe the 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 (E.O. 13132)

In accordance with Executive Order 13132, this 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 regarding the
reintroduction of these fishes into 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; the 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 final rule.

Civil Justice Reform (E.O. 12988)

In accordance with Executive Order 12988, the Department of the
Interior has determined that this 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 ten or
more parties, and a submission under the Paperwork Reduction Act is not
required. An agency may not conduct or sponsor, and a person is not
required to respond to a collection of information unless it displays a
currently valid OMB Control Number.

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 (NEPA) is not required. We
have determined that the issuance of a final rule for these NEPs is
categorically excluded under our NEPA procedures (516 DM 6, Appendix
1.4 B (6)).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive

[[Page 52426]]

Order 13175, and 512 DM 2, we have evaluated possible effects on
federally recognized Indian tribes and have determined that there are
no effects.

Energy Supply, Distribution or Use (E.O. 13211)

On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. Because this final
rule is not a significant regulatory action under Executive Order
12866, it is not expected to significantly affect energy supplies,
distribution, and use. Therefore, this action is a not a significant
energy action and no Statement of Energy Effects is required.

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 final rule is Richard G. Biggins.
Please contact Bob Butler (see ADDRESSES section) for further
information.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Final Regulation Promulgation

Accordingly, we 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) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Fishes

* * * * * * *
Chub, spotfin (=turquoise shiner) Cyprinella(=Hybopsis U.S.A. (AL, GA, NC, Entire, except T 28, 732 17.95(e) 17.44(c)
monacha). TN, VA). where listed as an
experimental
population.
Do ......do.................. do ......do......... do ......do........ Tellico River, from XN 732 NA 17.84(m)
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 percnurum U.S.A. (TN, VA).... Entire, except E 502, 732 NA NA
where listed as an
experimental
population.

[[Page 52427]]

Do........................... ......do............ ......do........... Tellico River, from XN 732 NA 17.84(m)
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, 732 17.95(e) NA
where listed as an
experimental
population.
Do............................... ......do............ ......do........... Tellico River, from XN 732 NA 17.84(m)
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 flavipinnis. U.S.A. (TN, VA).... Entire, except T 28, 317, 17.95(e) 17.44(c)
where listed as an 732
experimental
population.
Do............................... ......do............ ......do........... N. Fork Holston XN 317 NA 17.84(e)
River Watershed,
VA, TN; S. Fork
Holston R., up-
stream to Ft.
Patrick Henry Dam,
TN; Holston R.
down-stream to
John Sevier
Detention Lake
Dam, TN; and all
tributaries
thereto.
Do............................... ......do............ ......do........... Tellico River, from XN 732 NA 17.84(e)
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. Amend Sec. 17.84 by revising paragraph (e) and adding paragraph
(m) as set forth below:

Sec. 17.84 Special rules-vertebrates.

* * * * *
(e) Yellowfin madtom (Noturus flavipinnis).
(1) Where is the yellowfin madtom designated as a nonessential
experimental population (NEP)? We have designated two populations of
this species as NEPs: the North Fork Holston River Watershed NEP and
the Tellico River NEP.
(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 because individuals of the species are not
likely

[[Page 52428]]

to move 100 river miles through these large reservoirs, the possibility
that this population could come in contact with 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
19 (30.4 kilometers) and Tellico River mile 33 (52.8 kilometers), near
the Tellico Ranger Station, Monroe County, Tennessee. This species is
not currently known to exist in the Tellico River or its tributaries.
Based on its habitat requirements, we do not expect this species to
become established outside this NEP area. However, if individuals of
this population move upstream or downstream or into tributaries outside
the designated NEP area, we would presume that they came from the
reintroduced population. We would then amend this rule and enlarge the
boundaries of the NEP area to include the entire range of the expanded
population.
(2) 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).
(3) What activities are not allowed in the NEP areas?
(i) Except as expressly allowed in paragraph (e)(4) of this
section, all the prohibitions of Sec. 17.31 (a) and (b) apply to the
fishes identified in paragraph (e)(1) of this section.
(ii) Any manner of take not described under paragraph (e)(4) of
this section is prohibited in the NEP area. We may refer unauthorized
take of these fishes 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 fishes,
or parts thereof, that are taken or possessed in violation of paragraph
(e)(3) of this section 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 paragraph (e)(3) of this
section.
(4) What take is allowed in the NEP area? Take of this species that
is incidental to an otherwise legal activity, such as recreation (e.g.,
fishing, boating, wading, trapping, or swimming), forestry,
agriculture, and other activities that are in accordance with Federal,
State, and local laws and regulations, is allowed.
(5) 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.
* * * * *
(m) Spotfin chub (=turquoise shiner) (Cyprinella (=Hybopsis)
monacha), duskytail darter (Etheostoma percnurum), smoky madtom
(Noturus baileyi).
(1) Where are populations of these fishes designated as
nonessential experimental populations (NEPs)?
(i) The NEP area for these three fishes is within the species'
probable historic ranges and is defined as follows: The Tellico River,
between the backwaters of the Tellico Reservoir (approximately Tellico
River mile 19 (30.4 kilometers) and Tellico River mile 33 (52.8
kilometers), near the Tellico Ranger Station, Monroe County, Tennessee.
(ii) None of the fishes named in paragraph (m) of this section are
currently known to exist in the Tellico River or its tributaries. Based
on the habitat requirements of these fishes, we do not expect them to
become established outside the NEP area. However, if any individuals of
any of the species move upstream or downstream or into tributaries
outside the designated NEP area, we would presume that they came from
the reintroduced populations. We would then amend paragraph (m)(1)(i)
of this section 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 paragraph (m)(3) of this
section, all the prohibitions of Sec. 17.31 (a) and (b) apply to the
fishes identified in paragraph (m)(1) of this section.
(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 fishes,
or parts thereof, that are taken or possessed in violation of paragraph
(m)(2) of this section 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 paragraph (m)(2) of this
section.
(3) What take is allowed in the NEP area? Take of this species that
is incidental to an otherwise legal activity, such as recreation (e.g.,
fishing, boating, wading, trapping, or swimming), forestry,
agriculture, and other activities that are in accordance with Federal,
State, and local laws and regulations, 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: July 23, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-20341 Filed 8-9-02; 8:45 am]
BILLING CODE 4310-55-P