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17916 Federal Register / Vol. 70, No.

67 / Friday, April 8, 2005 / Rules and Regulations

propoxyethyl)-1H-imidazole) and its Endangered Species Act of 1973, as continued existence of the species.
metabolites containing the 4-chloro-2- amended (Act), and would be classified Regulatory restrictions are considerably
trifluoromethylaniline moiety, as a nonessential experimental reduced under a Nonessential
calculated as the parent in connection population (NEP). Experimental Population (NEP)
with use of the pesticide under section The geographic boundaries of the NEP designation.
18 emergency exemptions granted by would extend from the mouth of Long Without the ‘‘nonessential
EPA. The tolerances are specified in the Branch, Lawrence County, Tennessee experimental population’’ designation,
following table, and will expire and are (Shoal Creek mile (CM) 41.7 (66.7 the Act provides that species listed as
revoked on the dates specified. kilometers (km)), downstream to the endangered or threatened are afforded
backwaters of the Wilson Reservoir at protection primarily through the
Expiration/ Goose Shoals, Lauderdale County, prohibitions of section 9 and the
Parts per
Commodity revocation Alabama (approximately CM 14 (22 requirements of section 7. Section 9 of
million date km)), and would include the lower 5 the Act prohibits the take of an
Broccoli ............. 1.0 6/30/08 CM (8 km) of all tributaries that enter endangered species. ‘‘Take’’ is defined
Cabbage, chi- this reach. by the Act as harass, harm, pursue,
nese, napa .... 9.0 6/30/08 These reintroductions are recovery hunt, shoot, wound, trap, capture, or
Collards ............. 9.0 6/30/08 actions and are part of a series of collect, or attempt to engage in any such
Coriander, reintroductions and other recovery conduct. Service regulations (50 CFR
leaves ............ 9.0 6/30/08 actions that the Service, Federal and 17.31) generally extend the prohibitions
Dandelion, State agencies, and other partners are of take to threatened wildlife. Section 7
leaves ............ 7.0 6/30/08 conducting throughout the species’ of the Act outlines the procedures for
Kale ................... 9.0 6/30/08 historical ranges. This rule provides a Federal interagency cooperation to
Kohlrabi ............. 9.0 6/30/08 conserve federally listed species and
Mustard greens 9.0 6/30/08
plan for establishing the NEP and
Parsley, leaves 9.0 6/30/08 provides for limited allowable legal protect designated critical habitat. It
Swiss chard ...... 7.0 6/30/08 taking of the boulder darter and spotfin mandates that all Federal agencies use
chub within the defined NEP area. In their existing authorities to further the
* * * * * addition, we are changing the scientific purposes of the Act by carrying out
name for spotfin chub, from Cyprinella programs for the conservation of listed
[FR Doc. 05–7046 Filed 4–7–05; 8:45 am] species. It also states that Federal
(=Hybopsis) monacha to Erimonax
BILLING CODE 6560–50–S
monachus, to reflect a recent change in agencies will, in consultation with the
the scientific literature, and adding a Service, ensure that any action they
map to the regulation for a previously authorize, fund, or carry out is not likely
DEPARTMENT OF THE INTERIOR created NEP including one of these to jeopardize the continued existence of
fishes for the purposes of clarity. a listed species or result in the
Fish and Wildlife Service destruction or adverse modification of
DATES: The effective date of this rule is
April 8, 2005. designated critical habitat. Section 7 of
50 CFR Part 17 the Act does not affect activities
ADDRESSES: Comments and materials
RIN 1018–AH44 undertaken on private land unless they
received, as well as supporting
are authorized, funded, or carried out by
documentation used in preparation of
Endangered and Threatened Wildlife a Federal agency.
this final rule, are available for public With the experimental population
and Plants; Establishment of a inspection, by appointment, during
Nonessential Experimental Population designation, a population designated is
normal business hours at the Tennessee treated for purposes of section 9 of the
for Two Fishes (Boulder Darter and Field Office, U.S. Fish and Wildlife
Spotfin Chub) in Shoal Creek, Act as threatened regardless of the
Service, 446 Neal Street, Cookeville, TN species’ designation elsewhere in its
Tennessee and Alabama 38501. range. Threatened designation allows us
AGENCY: Fish and Wildlife Service, You may obtain copies of the final greater discretion in devising
Interior. rule from the field office address above, management programs and special
by calling (931) 528–6481, or from our regulations for such a population.
ACTION: Final rule.
Web site at http://cookeville.fws.gov. Section 4(d) of the Act allows us to
SUMMARY: We, the U.S. Fish and FOR FURTHER INFORMATION CONTACT: adopt whatever regulations are
Wildlife Service (Service), in Timothy Merritt at the above address necessary to provide for the
cooperation with the States of (telephone 931/528–6481, Ext. 211, conservation of a threatened species. In
Tennessee and Alabama and with facsimile 931/528–7075, or e-mail at these situations, the general regulations
Conservation Fisheries, Inc., a nonprofit timothy_merritt@fws.gov). that extend most section 9 prohibitions
organization, plan to reintroduce one SUPPLEMENTARY INFORMATION: to threatened species do not apply to
federally listed endangered fish, the that species, and the special 4(d) rule
boulder darter (Etheostoma wapiti), and Background contains the prohibitions and
one federally listed threatened fish, the 1. Legislative: Under section 10(j) of exemptions necessary and appropriate
spotfin chub (Cyprinella (=Hybopsis) the Act, the Secretary of the Department to conserve that species. Regulations
monacha), into their historical habitat of the Interior can designate issued under section 4(d) for NEPs are
in Shoal Creek (a tributary to the reintroduced populations established usually more compatible with routine
Tennessee River), Lauderdale County, outside the species’ current range, but human activities in the reintroduction
Alabama, and Lawrence County, within its historical range, as area.
Tennessee. Based on the evaluation of ‘‘experimental.’’ Based on the best For the purposes of section 7 of the
species’ experts, these species currently scientific and commercial data Act, we treat an NEP as a threatened
do not exist in this reach or its available, we must determine whether species when the NEP is located within
tributaries. These two fish are being experimental populations are a National Wildlife Refuge or National
reintroduced under section 10(j) of the ‘‘essential,’’ or ‘‘nonessential,’’ to the Park, and section 7(a)(1) and the

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Federal Register / Vol. 70, No. 67 / Friday, April 8, 2005 / Rules and Regulations 17917

consultation requirements of section Alabama, and the lower reaches of species were released into the Tellico
7(a)(2) of the Act apply. Section 7(a)(1) Richland Creek, an Elk River tributary, River starting in 2003 and continuing in
requires all Federal agencies to use their Giles County, Tennessee (U.S. Fish and 2004. It is still too early to determine the
authorities to conserve listed species. Wildlife Service 1989). success of these releases, but it is
Section 7(a)(2) requires that Federal The spotfin chub is also olive colored, believed that the habitat and water
agencies, in consultation with the but with sides that are largely silvery quality is sufficient to ensure future
Service, insure that any action and with white lower parts. Large success similar to the Abrams Creek
authorized, funded, or carried out is not nuptial males have brilliant turquoise- reintroductions. CFI has also
likely to jeopardize the continued royal blue coloring on the back, side of successfully propagated boulder darters
existence of a listed species or adversely the head, and along the mid-lateral part and augmented the only known
modify its critical habitat. When NEPs of the body. It is also a small fish, population of the species in the Elk
are located outside a National Wildlife approximately 92 millimeters (mm) (4 River system in Tennessee.
Refuge or National Park, we treat the inches (in)) in length. The spotfin chub Based on CFI’s success and intimate
population as proposed for listing and was once a widespread species and was knowledge of these two fishes and their
only two provisions of section 7 would historically known from 24 upper and habitat needs, we contracted with CFI to
apply—section 7(a)(1) and section middle Tennessee River system streams, survey Shoal Creek in order to
7(a)(4). In these instances, NEPs provide including Shoal Creek. It is now extant determine if suitable habitat exists in
additional flexibility because Federal in only four rivers/river systems—the this creek for reintroductions, and if we
agencies are not required to consult Buffalo River at the mouth of Grinders could expand our ongoing fish recovery
with us under section 7(a)(2). Section Creek, Lewis County, Tennessee; the efforts to these waters (Rakes and Shute
7(a)(4) requires Federal agencies to Little Tennessee River, Swain and 1999). Rakes and Shute (1999)
confer (rather than consult) with the Macon Counties, North Carolina; Emory concluded that about 20 miles (32 km)
Service on actions that are likely to River system (Obed River, Clear Creek, of Shoal Creek above the backwaters of
jeopardize the continued existence of a and Daddys Creek), Cumberland and the Wilson Reservoir appeared to
species proposed to be listed. The Morgan Counties, Tennessee; the contain suitable reintroduction habitat
results of a conference are advisory in Holston River and its tributary, North for both fishes. The boulder darter and
nature and do not restrict agencies from Fork Holston River, Hawkins and spotfin chub were last collected from
carrying out, funding, or authorizing Sullivan Counties, Tennessee, and Scott Shoal Creek in the 1880s, and since then
activities. and Washington Counties, Virginia (U.S. both were apparently extirpated from
Individuals that are used to establish Fish and Wildlife Service 1983; P. this reach. We believe the boulder darter
an experimental population may come Shute, TVA, pers. comm. 1998). was extirpated by the combined effects
from a donor population, provided their Since the mid-1980s, Conservation of water pollution and the
removal will not create adverse impacts Fisheries, Inc. (CFI), a nonprofit impoundment of lower Shoal Creek
upon the parent population, and organization, with support from us, the with the construction of Wilson Dam
provided appropriate permits are issued Tennessee Wildlife Resources Agency (U.S. Fish and Wildlife Service 1989).
in accordance with our regulations (50 (TWRA), U.S. Forest Service, National We believe that similar factors led to the
CFR 17.22) prior to their removal. In the Park Service, Tennessee Valley extirpation of the spotfin chub.
case of the boulder darter and spotfin Authority (TVA), and Tennessee However, as a result of implementation
chub, the donor population is a captive- Aquarium, has successfully of the Clean Water Act by the U.S.
bred population, which was propagated translocated, propagated, and Environmental Protection Agency (EPA)
with the intention of re-establishing reintroduced the spotfin chub and three and State water and natural resources
wild populations to achieve recovery other federally listed fishes (smoky agencies, and the pollution control
goals. In addition, it is possible that madtoms, yellowfin madtoms, and measures undertaken by municipalities,
wild adult stock could also be released duskytail darters) into Abrams Creek, industries, and individuals, the creek’s
into the NEP area. Great Smoky Mountains National Park, water quality has greatly improved and
2. Biological information: The Blount County, Tennessee. These fish its resident fish fauna have responded
endangered boulder darter is an olive- to historically occupied Abrams Creek positively (Charles Saylor, TVA, pers.
gray-colored fish that lacks the red spots prior to an ichthyocide treatment in the comm. 2002; based on his bioassays).
common to most darters. It is a small 1950s. An NEP designation for Abrams 3. Recovery Goals/Objectives: The
fish, approximately 76 millimeters (mm) Creek was not needed since the entire boulder darter (Etheostoma wapiti)
(3 inches (in)) in length. Although watershed occurs on National Park (Etnier and Williams 1989) was listed as
boulder darters were historically Service land, section 7 of the Act an endangered species on September 1,
recorded only in the Elk River system applies regardless of the NEP 1988 (53 FR 33996). We completed a
and Shoal Creek (a tributary to the designation, and existing human recovery plan for this species in July
Tennessee River), scientists believe, activities and public use of the Creek are 1989 (U.S. Fish and Wildlife Service
based on the historical availability of consistent with protection and take 1989). The downlisting (reclassification
suitable habitat, that this darter once restrictions needed for the reintroduced from endangered to threatened)
inhabited fast-water rocky habitat in the populations. Natural reproduction by all objectives in the recovery plan are: (1)
Tennessee River and its larger four species in Abrams Creek has been To protect and enhance the existing
tributaries in Tennessee and Alabama, documented, but the spotfin chub population in the Elk River and its
from the Paint Rock River in Madison appears to be the least successful in this tributaries, and to successfully establish
County, Alabama, downstream to at capacity (Rakes et al. 2001; Rakes and a reintroduced population in Shoal
least Shoal Creek in Lauderdale County, Shute 2002). We have also worked with Creek or other historical habitat or
Alabama (U.S. Fish and Wildlife Service CFI to translocate, propagate, and discover an additional population so
1989). Currently, it is extirpated from reintroduce these same four fish into an that at least two viable populations
Shoal Creek (a tributary to the NEP established for a section of the exist; and (2) to complete studies of the
Tennessee River) and exists only in the Tellico River, Monroe County, species’ biological and ecological
Elk River, Giles and Lincoln Counties, Tennessee (67 FR 52420, August 12, requirements and implement
Tennessee, and Limestone County, 2002). Propagated fish of these four management strategies developed from

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17918 Federal Register / Vol. 70, No. 67 / Friday, April 8, 2005 / Rules and Regulations

these studies that have been or are likely 4. Reintroduction site: In May 1999 Individual fish that would be used for
to be successful. The delisting objectives letters to us, the Commissioner of the the reintroductions primarily will be
are: (1) To protect and enhance the Alabama Department of Conservation artificially propagated juveniles.
existing population in the Elk River and and Natural Resources (ADCNR) and the However, it is possible that wild adult
its tributaries, and to successfully Executive Director of the TWRA stock could also be released into the
establish reintroduced populations or requested that we consider designating NEP area. Spotfin chub and boulder
discover additional populations so that NEPs for the spotfin chub and boulder darter propagation and juvenile rearing
at least three viable populations exist darter and reintroducing both species technology are available. The parental
(the Elk River population including the into Shoal Creek, where they stock of the juvenile fishes for
tributaries must be secure from river historically occurred. reintroduction will come from existing
mile (RM) 90 downstream to RM 30); (2) We previously established NEPs for wild populations. In some cases, the
to complete studies of the species’ the spotfin chub and three other parental stock for juvenile fish will be
biological and ecological requirements federally listed fishes in the Tellico returned back to the same wild
and implement successful management River, Tennessee, on August 12, 2002 population. Generally, the parents are
strategies; and (3) to ensure that no (67 FR 52420). Reintroductions of the permanently held in captivity.
foreseeable threats exist that would spotfin chub were initiated in the The permanent removal of adults
likely impact the survival of any Tellico River in 2002 and were from the wild for their use in
populations. continued in 2003 and 2004 along with reintroduction efforts may occur when
The spotfin chub (=turquoise shiner) the first reintroductions of the one or more of the following conditions
(Cyprinella (=Hybopsis) monacha) remaining three fish species. These exist: (1) Sufficient adult fish are
(Cope 1868) was listed as a threatened reintroduced fish are being monitored. available within a donor population to
species on September 9, 1977, with We believe the Tellico River is suitable sustain the loss without jeopardizing the
critical habitat and a special rule (42 FR for the establishment of viable species; (2) the species must be removed
45526). The critical habitat map was populations of each of these four fish from an area because of an imminent
corrected on September 22, 1977 (42 FR and anticipate success as this recovery threat that is likely to eliminate the
47840). We completed a recovery plan project proceeds. Establishment of population or specific individuals
for this species in November 1983 (U.S. viable populations of the spotfin chub present in an area; or (3) when the
Fish and Wildlife Service 1983). We in both the Tellico River under the population is not reproducing. It is most
also established an NEP for the spotfin existing regulation and in Shoal Creek likely that adults will be permanently
chub and three other federally listed under this regulation will help achieve removed because of the first condition:
fishes for a section of the Tellico River an objective in the recovery of this fish. sufficient adult fish are available within
in Monroe County, Tennessee, on However, it will take several years of a donor population to sustain the loss
August 12, 2002 (67 FR 52420). The monitoring to fully evaluate if without jeopardizing the species. An
delisting objectives in the recovery plan populations of this fish (and the other enhancement of propagation or survival
are: (1) To protect and enhance existing fishes) have become established and permit under section 10(a)(1)(A) of the
populations so that viable populations remain viable in these historic river Act is required. The permit will be
exist in the Buffalo River system, upper reaches. issued before any take occurs, and we
Little Tennessee River, Emory River Based on the presence of suitable will coordinate these actions with the
system, and lower North Fork Holston habitat, the positive response of native appropriate State natural resources
River; (2) to ensure, through fish species to habitat improvements in agencies.
reintroduction and/or the discovery of Shoal Creek, the presence of similar fish 6. Status of reintroduced population:
two new populations, that viable species that have similar habitat Previous translocations, propagations,
populations exist in two other rivers; requirements to both of these fishes, the and reintroductions of spotfin chubs
and (3) to ensure that no present or recommendations mentioned above, and and boulder darters have not affected
foreseeable threats exist that would the evaluation of biologists familiar with the wild populations of either species.
likely impact the survival of any Shoal Creek, we believe that Shoal The use of artificially propagated
populations. Creek, from the mouth of Long Branch juveniles will reduce the potential
The recovery criteria for both fishes to the backwaters of the Wilson effects on wild populations. The status
generally agree that, to reach recovery, Reservoir, is suitable for the of the extant populations of the boulder
we must: (1) Restore existing reintroduction of the boulder darter and darter and spotfin chub is such that
populations to viable levels, (2) spotfin chub as NEPs. individuals can be removed to provide
reestablish multiple, viable populations According to P. Rakes (CFI, pers. a donor source for reintroduction
in historical habitats, and (3) eliminate comm. 2005), the best sites to without creating adverse impacts upon
foreseeable threats that would likely reintroduce these fishes into Shoal the parent population. If any of the
threaten the continued existence of any Creek are between CM 33 (53 km) and reintroduced populations become
viable populations. The number of CM 14 (22 km). Therefore, we plan to established and are subsequently lost,
secure, viable populations (existing and reintroduce the boulder darter and the likelihood of the species’ survival in
restored) needed to achieve recovery spotfin chub into historical habitat of the wild would not be appreciably
varies by species and depends on the the free-flowing reach of Shoal Creek reduced. Therefore, we have determined
extent of the species’ probable historical between CM 33 and CM 14. This reach that these reintroduced fish populations
range (i.e., species that were once contains the most suitable habitat for in Shoal Creek are not essential to the
widespread require a greater number of the reintroductions. Neither species continued existence of the species. We
populations for recovery than species currently exists in Shoal Creek or its will ensure, through our section 10
that were historically more restricted in tributaries. permitting authority and the section 7
distribution). However, the 5. Reintroduction procedures: The consultation process, that the use of
reestablishment of historical dates for these reintroductions, the animals from any donor population for
populations is a critical component to specific release sites, and the actual these reintroductions is not likely to
the recovery of both the boulder darter number of individuals to be released jeopardize the continued existence of
and spotfin chub. cannot be determined at this time. the species.

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Federal Register / Vol. 70, No. 67 / Friday, April 8, 2005 / Rules and Regulations 17919

Reintroductions are necessary to Section 10(j)(2)(C)(ii) of the Act states darter and spotfin chub for scientific
further the recovery of these species. that critical habitat shall not be purposes; to relocate boulder darter and
The NEP designation for the designated for any experimental spotfin chub to avoid conflict with
reintroduction alleviates landowner population that is determined to be human activities; for recovery purposes;
concerns about possible land and water nonessential. Accordingly, we cannot to relocate boulder darter and spotfin
use restrictions by providing a flexible designate critical habitat in areas where chub to other reintroduction sites; to aid
management framework for protecting we have already established, by sick or injured boulder darter and
and recovering the boulder darter and regulation, a nonessential experimental spotfin chub; and to salvage dead
spotfin chub, while ensuring that the population. boulder darter and spotfin chub.
daily activities of landowners are 8. Management: The aquatic resources (c) Coordination with landowners and
unaffected. In addition, the anticipated in the reintroduction area are managed land managers: The Service and
success of these reintroductions will by the ADCNR and TWRA. Multiple-use cooperators identified issues and
enhance the conservation and recovery management of these waters will not concerns associated with the boulder
potential of these species by extending change as a result of the experimental darter and spotfin chub reintroduction
their present ranges into currently designation. Private landowners within before preparing this rule. The
unoccupied historical habitat. These the NEP area will still be allowed to reintroduction also has been discussed
species are not known to exist in Shoal continue all legal agricultural and with potentially affected State agencies,
Creek or its tributaries at the present recreational activities. Because of the businesses, and landowners within the
time. substantial regulatory relief provided by release area. The land along the NEP site
7. Location of reintroduced NEP designations, we do not believe the is privately owned. International Paper
population: The NEP area, which reintroduction of boulder darter and owns a large tract within the NEP area
encompasses all the sites for the spotfin chub will conflict with existing and has expressed a strong interest in
reintroductions, will be located in the human activities or hinder public use of working with us to establish these fish
free-flowing reach of Shoal Creek (a the area. The ADCNR and the TWRA in their stretch of the creek. Most, if not
tributary to the Tennessee River), have previously endorsed the boulder all, of the identified businesses are
Lauderdale County, Alabama, and darter and spotfin chub reintroductions small businesses engaged in activities
Lawrence County, Tennessee, from the under NEP designations and are along the affected reaches of this creek.
mouth of Long Branch downstream to supportive of this effort. The NEP Affected State agencies, businesses,
the backwaters of the Wilson Reservoir. designation will not require the ADCNR landowners, and land managers have
Section 10(j) of the Act requires that an and the TWRA to specifically manage indicated support for the reintroduction,
experimental population be for reintroduced boulder darter and if boulder darter and spotfin chub
geographically separate from other wild spotfin chub. released in the experimental population
populations of the same species. This The Service, State employees, and area are established as an NEP and if
NEP area is totally isolated from existing CFI, Inc., staff will manage the aquatic resource activities in the
populations of these species by large reintroduction. They will closely experimental population area are not
reservoirs, and neither fish species is coordinate on reintroductions, constrained.
known to occur in or move through monitoring, coordination with (d) Potential for conflict with human
large reservoirs. Therefore, the landowners and land managers, and activities: We do not believe these
reservoirs will act as barriers to the public awareness, among other tasks reintroductions will conflict with
species’ downstream movement into the necessary to ensure successful existing or proposed human activities or
Tennessee River and its tributaries and reintroductions of species. hinder public use of the NEP area
ensure that this NEP remains (a) Mortality: The Act defines within Shoal Creek. Experimental
geographically isolated and easily ‘‘incidental take’’ as take that is population special rules contain all the
distinguishable from existing wild incidental to, and not the purpose of, prohibitions and exceptions regarding
populations. Based on the fishes’ habitat the carrying out of an otherwise lawful the taking of individual animals. These
requirements, we do not expect them to activity such as recreation (e.g., fishing, special rules are compatible with
become established outside the NEP. boating, wading, trapping or routine human activities in the
However, if any of the reintroduced swimming), forestry, agriculture, and reintroduction area.
boulder darters and spotfin chubs move other activities that are in accordance (e) Monitoring: After the first initial
outside the designated NEP area, then with Federal, Tribal, State, and local stocking of these two fish, we will
the fish would be considered to have laws and regulations. A person may take monitor annually their presence or
come from the NEP area. In that case, a boulder darter or spotfin chub within absence and document any spawning
we may propose to amend the rule and the experimental population area behavior or young-of-the-year fish that
enlarge the boundaries of the NEP area provided that the take is unintentional might be present. This monitoring will
to include the entire range of the and was not due to negligent conduct. be conducted primarily by snorkeling or
expanded populations. Such conduct will not constitute seining and will be accomplished by
The designated NEP area for the ‘‘knowing take,’’ and we will not pursue contracting with the appropriate species
spotfin chub in the Tellico River (67 FR legal action. However, when we have experts. Annual reports will be
52420) does not overlap or interfere evidence of knowing (i.e., intentional) produced detailing the stocking rates
with this NEP area for Shoal Creek in take of a boulder darter or spotfin chub, and monitoring activities that took place
Tennessee and Alabama because they we will refer matters to the appropriate during the previous year. We will also
are geographically separated river authorities for prosecution. We expect fully evaluate these reintroduction
reaches. levels of incidental take to be low since efforts after 5 and 10 years to determine
Critical habitat has been designated the reintroduction is compatible with whether to continue or terminate the
for the spotfin chub (42 FR 47840, existing human use activities and reintroduction efforts.
September 22, 1977); however, the practices for the area. (f) Public awareness and cooperation:
designation does not include this NEP (b) Special Handling: Service On August 26, 1999, we mailed letters
area. Critical habitat has not been employees and authorized agents acting to 80 potentially affected congressional
designated for the boulder darter. on their behalf may handle boulder offices, Federal and State agencies, local

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17920 Federal Register / Vol. 70, No. 67 / Friday, April 8, 2005 / Rules and Regulations

governments, and interested parties to September 9, 1977, under the scientific jurisdictions, and interest groups. We
notify them that we were considering name of Hybopsis monacha. The current provided the document on the Service’s
proposing NEP status in Shoal Creek for list of endangered and threatened Tennessee Field Office Internet site
two fish species. We received a total of species at 50 CFR 17.11(h), the existing following its release.
four responses to the 1999 notification, experimental population on the Tellico During the public comment period,
all of which supported our proposed River in Tennessee at 50 CFR 17.84(m), we received comments from four
designation and reintroductions. and the critical habitat designation at 50 parties: One State agency, two
The EPA supported the proposal, CFR 17.95(e) all use the scientific name universities, and one nonprofit
commended the ADCNR, TWRA, and us Cyprinella (=Hybopsis) monacha for the organization. Of the four parties
for the proposal and its projected spotfin chub. However, the special rule responding, three supported the
beneficial results, and stated that the at 50 CFR 17.44(c) uses the scientific proposed NEP and one was neutral. The
reintroductions would assist them in name Hybopsis monacha for the spotfin Alabama Department of Conservation
meeting one of the goals of the Clean chub. In the proposed rule (69 FR and Natural Resources submitted
Water Act—restoring the biological 61774, October 21, 2004), we proposed comments as peer reviewers. The State
integrity of the Nation’s water. correcting the text for the special rule at agency’s comments are reflected in Peer
The TVA strongly supported the 50 CFR 17.44(c) by changing the Review Comment 1 and 2 below.
concept of reintroducing extirpated scientific name for the spotfin chub In conformance with our policy on
species, but also cautioned that past from Hybopsis monacha to Cyprinella peer review, published on July 1, 1994
industrial discharges into Shoal Creek (=Hybopsis) monacha to make this (59 FR 34270), we solicited independent
could potentially limit or prevent the section consistent with the text of the opinions from four knowledgeable
survival of sensitive fishes in the creek. existing regulations for the spotfin chub. individuals who have expertise with
The Tennessee Department of During the comment period, it was these species within the geographic
Environment and Conservation brought to our attention that the region where the species occurs, and/or
applauded our (TWRA, CFI, and us) scientific name for the spotfin chub has familiarity with the principles of
efforts to restore Shoal Creek fishes. recently been changed to Erimonax conservation biology. We received
They also supported the proposed monachus (Nelson et al. 2004). This comments from two of the four peer
reintroductions under NEP status, name change has occurred in a peer- reviewers. These are included in the
because the designation will ensure that reviewed journal and has acceptance in summary below and incorporated into
current human uses of Shoal Creek are the scientific community. Therefore we this final rule.
given due consideration in recovery are correcting the text for the current list
We reviewed all comments received
efforts for the species. of endangered and threatened species at
from the peer reviewers and the public
Dr. David Etnier, Department of 50 CFR 17.11(h), the existing
for substantive issues and new
Ecology and Evolutionary Biology, experimental population on the Tellico
information regarding the proposed
University of Tennessee, Knoxville, River in Tennessee at 50 CFR 17.84(m),
NEP. Substantive comments received
Tennessee, supported the the critical habitat designation at 50
during the comment period have either
reintroductions and concluded that he CFR 17.95(e), and the special rule at 50
been addressed below or incorporated
saw no compelling reason to delay CFR 17.44(c) by changing the scientific
directly into this final rule. The
them. name for the spotfin chub from
We have informed the general public Cyprinella (=Hybopsis) monacha to comments are grouped below as either
of the importance of this reintroduction Erimonax monachus (see Regulation peer review or public comments.
project in the overall recovery of the Promulgation section below). Peer Review Comments
boulder darter and spotfin chub. The (2) Unlike many of the existing
experimental population regulations at (1) Comment: The proposed
designation of the NEP for Shoal Creek
50 CFR 17.84, the entries for the reintroduction is for Shoal Creek in
and adjacent areas would provide
experimental populations for the Tellico Lauderdale County, Alabama; however,
greater flexibility in the management of
River in Tennessee at 50 CFR 17.84(e) there is another Shoal Creek in
the reintroduced boulder darter and
and (m) do not include a map. We are Limestone County, Alabama, that is a
spotfin chub. The NEP designation is
adding a map for these entries in order tributary to the Elk River. Limestone
necessary to secure needed cooperation
to provide clarity for the public and County is adjacent to Lauderdale
of the States, landowners, agencies, and
make this section consistent with the County and a recent survey by the
other interests in the affected area.
text of the existing regulations for other Geological Survey of Alabama collected
Finding experimental populations. two boulder darters in this Shoal Creek,
Based on the above information, and which was a new tributary record for
Summary of Comments and this species. Because there are two
using the best scientific and commercial Recommendations
data available (in accordance with 50 creeks named ‘‘Shoal’’ in adjacent
CFR 17.81), the Service finds that In the October 21, 2004, proposed rule counties, it might help to differentiate
releasing the boulder darter and spotfin (69 FR 61774), we requested that all between the two creeks to lessen any
chub into the Shoal Creek Experimental interested parties submit comments or potential confusion.
Population Area under a Nonessential information concerning the proposed Response: We have clarified the
Experimental Population designation NEP. We contacted appropriate Federal, description of the Shoal Creek in
will further the conservation of the State, and local agencies, county Lauderdale County, Alabama, that
species. governments, elected officials, scientific occurs within the NEP by stating that
organizations, and other interested this Shoal Creek is a tributary to the
Other Changes to the Regulations parties and invited them to comment on Tennessee River. The Shoal Creek in
In addition, we are making two minor the proposed NEP. We also provided Limestone County, Alabama, is a
technical corrections to the existing notification of this document through e- tributary to the Elk River. This, along
regulations regarding these species: mail, telephone calls, letters, and news with the county it occurs in, should
(1) The spotfin chub was listed with releases faxed and/or mailed to affected adequately differentiate between the
critical habitat and a special rule on elected officials, media outlets, local two creeks.

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Federal Register / Vol. 70, No. 67 / Friday, April 8, 2005 / Rules and Regulations 17921

(2) Comment: Section 5 of the Response: We appreciate order to ensure that they will have a
proposed rule states that artificially Environmental Defense’s support of this chance to successfully spawn one last
propagated juveniles will most likely be important recovery effort to restore time in the wild. The 30-day delay
reintroduced, but wild adult stock could these fish back into this portion of their would be contrary to the public interest
also be used. The literature states that historical range. because it would result in a loss of
adult and juvenile spotfin chubs require (7) Comment: No source population spawning for the first-time juvenile
slightly different habitats, thus for brood stock or wild adult stock is class and the last-time older class, and
reintroduction with juveniles should be identified in the proposed rule for the this would result in natural spawning
done to account for those differences. spotfin chub. not occurring in Shoal Creek until the
Response: It is our intent to release Response: The Service has not spring of 2006.
primarily juvenile spotfin chubs that identified the source population for the
spotfin chub because no decision has Required Determinations
have been raised by CFI. We have
worked closely with CFI to determine been made at this time on which source Regulatory Planning and Review (E.O.
the appropriate habitats for releasing population should be used. A final 12866)
these juvenile fish. If we do release any decision will be made in concert with
our State partners once we have In accordance with the criteria in
wild adult stock, we will work with CFI Executive Order 12866, this rule to
and the State Wildlife Agencies to reviewed the best available scientific
information. designate NEP status for the boulder
ensure that the appropriate habitat is darter and spotfin chub in Shoal Creek,
identified for their release. (8) Comment: No protocol is outlined
to determine if progeny from brood Lauderdale County, Alabama and
(3) Comment: The newest names list Lawrence County, Tennessee, is not a
stock reflects the genetic diversity
for fish has been released and the significant regulatory action subject to
present in the source population.
scientific name of the spotfin chub has Response: CFI states that it takes as Office of Management and Budget
been changed to Erimonax monachus. many adults from the source population review. This rule will not have an
Response: We have reviewed the as the Federal and State agencies believe annual economic effect of $100 million
reference provided and concur that the is appropriate to remove without or more on the economy and will not
scientific name of the spotfin chub has harming the source population and have an adverse effect on any economic
changed from Cyprinella (=Hybopsis) within limits of practicality. CFI also sector, productivity, competition, jobs,
monacha to Erimonax monachus. We states that it ensures that as many adults the environment, or other units of
have made the appropriate changes in as possible are involved in government. The area affected by this
the section titled ‘‘Other Changes to the reproduction. This sometimes involves rule consists of a very limited and
Regulations’’ (see above). cycling different males in and out of discrete geographic segment of lower
(4) Comment: The Etnier and production. CFI emphasizes the Shoal Creek (about 28 CM (44 km)) in
Williams 1989 description of the importance of these reintroductions southwestern Tennessee and northern
boulder darter was cited, but does not being long-term projects where new Alabama. Therefore, a cost-benefit and
appear in the Literature Cited section. parental stock is brought into economic analysis will not be required.
Response: This citation has been production every year or two from the We do not expect this rule to have
added to the Literature Cited section. original source population. We believe significant impacts to existing human
(5) Comment: Boulder darters may be that this method maximizes our activities (e.g., agricultural activities,
able to use reservoirs for dispersal potential to have offspring that have forestry, fishing, boating, wading,
purposes, and success of this similar genetic diversity to the source swimming, trapping) in the watershed.
introduction might make it easier for population and increases the recovery The reintroduction of these federally
them to reach the mouth of the Flint chances for these species within the listed species, which will be
River or perhaps some other fairly large limited amount of funding that Federal accomplished under NEP status with its
Tennessee River tributaries in Alabama. and State agencies have available to associated regulatory relief, is not
Response: We believe that the them. expected to impact Federal agency
reservoirs will act as barriers to the actions. Because of the substantial
species’ downstream movement into the Effective Date regulatory relief, we do not believe the
Tennessee River and its tributaries and We are making this rule effective proposed reintroduction of these species
will ensure that this NEP remains upon publication. In accordance with will conflict with existing or proposed
geographically isolated and easily the Administrative Procedure Act, we human activities or hinder public use of
distinguishable from existing known find good cause as required by 5 U.S.C. Shoal Creek or its tributaries.
wild populations in the Elk River 553(d)(3) to make this rule effective This rule will not create
watershed. However, we also state that immediately upon publication in the inconsistencies with other agencies’
if any of the reintroduced boulder Federal Register. We currently have two actions or otherwise interfere with an
darters or spotfin chubs move outside year classes of propagated boulder action taken or planned by another
the designated NEP area, then the fish darters available for release. The agency. Federal agencies most interested
would be considered to have come from juvenile class of boulder darters will be in this rulemaking are primarily the
the NEP area. In that case, we may ready to spawn this spring for the first EPA and TVA. Both Federal agencies
propose to amend the rule and enlarge time. In order for this group of boulder support the reintroductions. Because of
the boundaries of the NEP area to darters to have the maximum amount of the substantial regulatory relief
include the entire range of the expanded time to accomplish their first spawn, provided by the NEP designation, we
populations. these fish need to be placed into Shoal believe the reintroduction of the boulder
Creek in April. The earlier in April darter and spotfin chub in the areas
Public Comments these fish can be released, the more described will not conflict with existing
(6) Comment: Environmental Defense likely they are to spawn this spring. The human activities or hinder public
fully supports the proposal to establish older class of boulder darters are at the utilization of the area.
new experimental populations of the end of their spawning lives and must be This rule will not materially affect
boulder darter and the spotfin chub. placed into Shoal Creek by early May in entitlements, grants, user fees, or loan

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17922 Federal Register / Vol. 70, No. 67 / Friday, April 8, 2005 / Rules and Regulations

programs, or the rights and obligations reintroductions under an NEP Government and the States, or on the
of their recipients. Because there are no designation. However, they will not be distribution of power and
expected impacts or restrictions to required to manage for any reintroduced responsibilities among the various
existing human uses of Shoal Creek as species. Accordingly, this rule will not levels of government. The State wildlife
a result of this rule, no entitlements, ‘‘significantly or uniquely’’ affect small agencies in Alabama (ADCNR) and
grants, user fees, loan programs, or the governments. A Small Government Tennessee (TWRA) requested that we
rights and obligations of their recipients Agency Plan is not required since this undertake this rulemaking in order to
are expected to occur. rulemaking does not require any action assist the States in restoring and
This rule does not raise novel legal or to be taken by local or State recovering their native aquatic fauna.
policy issues. Since 1984, we have governments or private entities. We Achieving the recovery goals for these
promulgated section 10(j) rules for many have determined and certify pursuant to species will contribute to their eventual
other species in various localities. Such the Unfunded Mandates Reform Act, 2 delisting and their return to State
rules are designed to reduce the U.S.C. 1501 et. seq., that this rulemaking management. No intrusion on State
regulatory burden that would otherwise will not impose a cost of $100 million policy or administration is expected;
exist when reintroducing listed species or more in any given year on local or roles or responsibilities of Federal or
to the wild. State governments or private entities State governments will not change; and
Regulatory Flexibility Act (i.e., it is not a ‘‘significant regulatory fiscal capacity will not be substantially
action’’ under the Unfunded Mandates directly affected. The special rule
The Department of the Interior Reform Act.). operates to maintain the existing
certifies that this document will not relationship between the States and the
have a significant economic effect on a Takings (E.O. 12630)
Federal Government and is being
substantial number of small entities In accordance with Executive Order undertaken at the request of State
under the Regulatory Flexibility Act (5 12630, the rule does not have significant agencies (ADCNR and TWRA). We have
U.S.C. 601 et seq.). Although most of the takings implications. When cooperated with the ADCNR and TWRA
identified entities are small businesses reintroduced populations of federally in the preparation of this rule.
engaged in activities along the affected listed species are designated as NEPs, Therefore, this rule does not have
reaches of this creek, this rulemaking is the Act’s regulatory requirements significant Federalism effects or
not expected to have any significant regarding the reintroduced listed implications to warrant the preparation
impact on private activities in the species within the NEP are significantly of a Federalism Assessment pursuant to
affected area. The designation of an NEP reduced. Section 10(j) of the Act can
the provisions of Executive Order
in this rule will significantly reduce the provide regulatory relief with regard to
13132.
regulatory requirements regarding the the taking of reintroduced species
reintroduction of these species, will not within an NEP area. For example, this Civil Justice Reform (E.O. 12988)
create inconsistencies with other rule allows for the taking of these In accordance with Executive Order
agencies’ actions, and will not conflict reintroduced fishes when such take is 12988, the Office of the Solicitor has
with existing or proposed human incidental to an otherwise legal activity, determined that this rule does not
activity, or Federal, State, or public use such as recreation (e.g., fishing, boating, unduly burden the judicial system and
of the land or aquatic resources. wading, trapping, swimming), forestry, that it meets the requirements of
agriculture, and other activities that are sections (3)(a) and (3)(b)(2) of the Order.
Small Business Regulatory Enforcement in accordance with Federal, State, and
Fairness Act local laws and regulations. Because of Paperwork Reduction Act
This rule is not a major rule under 5 the substantial regulatory relief Office of Management and Budget
U.S.C. 804(2), the Small Business provided by NEP designations, we do (OMB) regulations at 5 CFR 1320, which
Regulatory Enforcement Fairness Act. not believe the reintroduction of these implement provisions of the Paperwork
This rule will not have an annual effect fishes will conflict with existing or Reduction Act (44 U.S.C. 3501 et seq.)
on the economy of $100 million or proposed human activities or hinder require that Federal agencies obtain
more. It will not cause a major increase public use of the Shoal Creek system. approval from OMB before collecting
in costs or prices for consumers; A takings implication assessment is information from the public. An agency
individual industries; Federal, State, or not required because this rule (1) will may not conduct or sponsor, and a
local government agencies; or not effectively compel a property owner person is not required to respond to, a
geographic regions. This rule does not to suffer a physical invasion of property collection of information, unless it
have significant adverse effects on and (2) will not deny all economically displays a currently valid control
competition, employment, investment, beneficial or productive use of the land number. This rule does not include any
productivity, innovation, or the ability or aquatic resources. This rule will new collections of information that
of United States-based enterprises to substantially advance a legitimate require approval by OMB under the
compete with foreign-based enterprises. government interest (conservation and Paperwork Reduction Act.
The intent of this special rule is to recovery of two listed fish species) and
facilitate and continue the existing will not present a barrier to all National Environmental Policy Act
commercial activity while providing for reasonable and expected beneficial use We have determined that the issuance
the conservation of the species through of private property. of this rule is categorically excluded
reintroduction into suitable habitat. under our National Environmental
Federalism (E.O. 13132)
Policy Act procedures (516 DM 6,
Unfunded Mandates Reform Act In accordance with Executive Order Appendix 1.4 B (6)).
The NEP designation will not place 13132, the rule does not have significant
any additional requirements on any city, Federalism effects to warrant the Government-to-Government
county, or other local municipality. The preparation of a Federalism Assessment. Relationship With Tribes
ADCNR and TWRA, which manage This rule will not have substantial In accordance with the President’s
Shoal Creek’s aquatic resources, direct effects on the States, in the memorandum of April 29, 1994,
requested that we consider these relationship between the Federal ‘‘Government-to-Government Relations

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Federal Register / Vol. 70, No. 67 / Friday, April 8, 2005 / Rules and Regulations 17923

with Native American Tribal States, Canada, and Mexico. Amer. Author
Governments’’ (59 FR 229511), Fisheries Soc. Spec. Pub. 29, Bethesda,
MD, 386 p. The principal author of this rule is
Executive Order 13175, and the
Rakes, P.L., P.W. Shute, and J.R. Shute. 1998. Timothy Merritt (see ADDRESSES
Department of the Interior Manual
Captive propagation and population section).
Chapter 512 DM 2, we have evaluated
monitoring of rare Southeastern fishes.
possible effects on federally recognized Final Report for 1997. Field Season and
List of Subjects in 50 CFR Part 17
Indian tribes and have determined that Quarterly Report for Fiscal Year 1998, Endangered and threatened species,
there are no effects. prepared for Tennessee Wildlife Resources Exports, Imports, Reporting and
Energy Supply, Distribution or Use (E.O. Agency, Contract No. FA–4–10792–5–00. recordkeeping requirements, and
13211) 32 pp. Transportation.
Rakes, P.L., and J.R. Shute. 1999. Results of
On May 18, 2001, the President issued assays of portions of the French Broad Final Regulation Promulgation
Executive Order 13211 on regulations River, Sevier and Knox Counties,
that significantly affect energy supply, Tennessee, and Shoal Creek, Lawrence and ■ Accordingly, we amend part 17,
distribution, and use. Executive Order Wayne Counties, Tennessee and subchapter B of chapter I, title 50 of the
13211 requires agencies to prepare Lauderdale Counties, Alabama, for suitable Code of Federal Regulations, as set forth
Statements of Energy Effects when habitat to support reintroduction of rare below:
fishes. Unpublished report prepared by
undertaking certain actions. This rule is
Conservation Fisheries, Inc., Knoxville, PART 17—[AMENDED]
not expected to significantly affect Tennessee, for the U.S. Fish and Wildlife
energy supplies, distribution, and use. Service, Asheville, North Carolina. 26 pp. ■ 1. The authority citation for part 17
Therefore, this action is not a significant Rakes, P.L., P.W. Shute, and J.R. Shute. 2001. continues to read as follows:
energy action and no Statement of Captive propagation and population
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
Energy Effects is required. monitoring of rare southeastern fishes:
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
2000. Unpublished Report to Tennessee
625, 100 Stat. 3500, unless otherwise noted.
Literature Cited Wildlife Resources Agency, Contract No.
Etnier, D.A., and J.D. Williams. 1989. FA–99–13085–00 ■ 2. Amend § 17.11(h) by revising the
Etheostoma (Nothonotus) wapiti Rakes, P.L. and J.R. Shute. 2002. Captive existing entries in the List of Endangered
(Osteichthyes: Percidae), a new darter from propagation and population monitoring of
rare southeastern fishes: 2001.
and Threatened Wildlife under FISHES
the southern bend of the Tennessee River
Unpublished Report to Tennessee Wildlife for ‘‘Chub, spotfin,’’ and ‘‘Darter,
system in Alabama and Tennessee.
Proceedings of the Biological Society of Resources Agency, Contract No. FA–99– boulder,’’ to read as follows:
Washington 102:987–1000 13085–00
§ 17.11 Endangered and threatened
Nelson, J.S., E.J. Crossman, H. Espinosa- U.S. Fish and Wildlife Service. 1983. Spotfin
wildlife.
Perez, L.T. Findley, C.R. Gilbert, R.N. Lea, Chub Recovery Plan. Atlanta, GA. 46
and J.D. Williams. 2004. Common and pp.ll 1989. Boulder Darter Recovery * * * * *
scientific names of fishes from the United Plan. Atlanta, GA. 15 pp. (h) * * *

Species Vertebrate popu- Critical Special


Historic range lation where endan- Status When listed habitat rules
Common name Scientific name gered or threatened

* * * * * * *
FISHES

* * * * * * *
Chub, spotfin ......... Erimonax U.S.A. (AL, GA, Entire, except T 28, 732 17.95(e) 17.44(c)
(=turquoise shiner) monachus. NC, TN, VA). 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 km)) up-
stream to Tellico
River mile 33 (53
km), in Monroe
County, TN.

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17924 Federal Register / Vol. 70, No. 67 / Friday, April 8, 2005 / Rules and Regulations

Species Vertebrate popu- Critical Special


Historic range lation where endan- Status When listed habitat rules
Common name Scientific name gered or threatened

Do ................... ......do .................... ......do .................... Shoal Creek (from XN 747 NA 17.84(o)
Shoal Creek mile
41.7 (66.7 km))
at the mouth of
Long Branch,
Lawrence Coun-
ty, TN, down-
stream to the
backwaters of
Wilson Reservoir
(Shoal Creek
mile 14 (22 km))
at Goose Shoals,
Lauderdale
County, AL, in-
cluding the lower
5 miles (8 km) of
all tributaries that
enter this reach.

* * * * * * *
Darter, boulder ...... Etheostoma wap- Entire, except ............................... E 322 NA NA
itiU.S.A. (AL, TN). where listed as
an experimental
population.
Do ................... ......do .................... ......do .................... Shoal Creek (from XN 747 NA 17.84(o)
Shoal Creek mile
41.7 (66.7 km))
at the mouth of
Long Branch,
Lawrence Coun-
ty, TN, down-
stream to the
backwaters of
Wilson Reservoir
(Shoal Creek
mile 14 (22 km))
at Goose Shoals,
Lauderdale
County, AL, in-
cluding the lower
5 miles (8 km) of
all tributaries that
enter this reach.

* * * * * * *

§ 17.44 [Amended] adding new paragraphs (m)(5) and (o) (m) Sptofin chub (=turquoise shiner)
including maps to read as follows: (Erimonax monachus), duskytail darter
■ 3. Amend § 17.44(c) introductory text
(Etheostoma percnurum), smoky
by removing the words ‘‘spotfin chub § 17.84 Special rules—vertebrates.
madtom (Noturus baileyi).
(Hybopsis monacha)’’ and adding, in * * * * *
their place, the words ‘‘spotfin chub (e) * * * * * * * *
(5) Note: Map of the NEP area for spotfin
(Erimonax monachus)’’. (6) Note: Map of the NEP area for the chub, duskytail darter, smoky madtom, and
yellowfin madtom in the Tellico River,
■ 4. Amend § 17.84 by adding new and yellowfin madtom (see paragraph (e) of
Tennessee, appears immediately following
paragraphs (e)(6), revising the paragraph (m)(5) of this section. this section) in Tennessee follows:
introductory text to paragraph (m), and
* * * * * BILLING CODE 4310–55–P

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ER08AP05.002</GPH>

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17926 Federal Register / Vol. 70, No. 67 / Friday, April 8, 2005 / Rules and Regulations

(o) Spotfin chub (=turquoise shiner) experimental,’’ ‘‘threatened,’’ or that are taken or possessed in violation
(Erimonax monachus), boulder darter ‘‘endangered’’ within the NEP area. of paragraph (o)(3) of this section or in
(Etheostoma wapiti). Additionally, we will not designate violation of the applicable State fish and
(1) Where are populations of these critical habitat for these NEPs, as wildlife laws or regulations or the Act.
fishes designated as nonessential provided by 16 U.S.C. 1539(j)(2)(C)(ii). (iv) You may not attempt to commit,
experimental populations (NEP)? (2) What take is allowed in the NEP
(i) The NEP area for the boulder darter area? Take of these species that is solicit another to commit, or cause to be
and the spotfin chub is within the accidental and incidental to an committed any offense defined in
species’ historic ranges and is defined as otherwise legal activity, such as paragraph (o)(3) of this section.
follows: Shoal Creek (from Shoal Creek recreation (e.g., fishing, boating, wading, (4) How will the effectiveness of these
mile 41.7 (66.7 km)) at the mouth of trapping, or swimming), forestry, reintroductions be monitored? After the
Long Branch, Lawrence County, TN, agriculture, and other activities that are initial stocking of these two fish, we
downstream to the backwaters of Wilson in accordance with Federal, State, and will monitor annually their presence or
Reservoir (Shoal Creek mile 14 (22 km)) local laws and regulations, is allowed. absence and document any spawning
at Goose Shoals, Lauderdale County, (3) What take of these species is not behavior or young-of-the-year fish that
AL, including the lower 5 miles (8 km) allowed in the NEP area? might be present. This monitoring will
of all tributaries that enter this reach. (i) Except as expressly allowed in be conducted primarily by snorkeling or
(ii) None of the fishes named in paragraph (o)(2) of this section, all the seining and will be accomplished by
paragraph (o) of this section are provisions of § 17.31(a) and (b) apply to contracting with the appropriate species
currently known to exist in Shoal Creek the fishes identified in paragraph (o)(1) experts. We will produce annual reports
or its tributaries. Based on the habitat of this section. detailing the stocking rates and
requirements of these fishes, we do not (ii) Any manner of take not described
monitoring activities that took place
expect them to become established under paragraph (o)(2) of this section is
during the previous year. We will also
outside the NEP area. However, if any prohibited in the NEP area. We may
fully evaluate these reintroduction
individuals of either of the species move refer unauthorized take of these species
efforts after 5 and 10 years to determine
upstream or downstream or into to the appropriate authorities for
tributaries outside the designated NEP prosecution. whether to continue or terminate the
area, we would presume that they came (iii) You may not possess, sell, reintroduction efforts.
from the reintroduced populations. deliver, carry, transport, ship, import, or (5) Note: Map of the NEP area for spotfin
(iii) We do not intend to change the export by any means whatsoever any of chub and boulder darter in Tennessee and
NEP designations to ‘‘essential the identified fishes, or parts thereof, Alabama follows:

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■ 5. Amend § 17.95(e) by removing the their place, the words ‘‘SPOTFIN CHUB Dated: April 1, 2005.
words ‘‘SPOTFIN CHUB (Cyprinella (Erimonax monachus)’’. Craig Manson,
(=Hybopsis) monacha)’’ and adding, in Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 05–7086 Filed 4–7–05; 8:45 am]
BILLING CODE 4310–55–C
ER08AP05.003</GPH>

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