[Federal Register Volume 64, Number 102 (Thursday, May 27, 1999)]
[Proposed Rules]
[Pages 28779-28791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13490]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE92


Endangered and Threatened Wildlife and Plants; Proposed 
Establishment of Nonessential Experimental Population Status for 
Sixteen Freshwater Mussels (Alabama Lampmussel, Birdwing Pearlymussel, 
Clubshell, Cracking Pearlymussel, Cumberland Bean Pearlymussel, 
Cumberlandian Combshell, Cumberland Monkeyface Pearlymussel, Dromedary 
Pearlymussel, Fine-Rayed Pigtoe, Oyster Mussel, Purple Cat's Paw 
Pearlymussel, Shiny Pigtoe, Tubercled-blossom Pearlymussel, Turgid-
blossom Pearlymussel, Winged Mapleleaf Mussel, and Yellow-blossom 
Pearlymussel) and One Freshwater Snail (Anthony's Riversnail) in the 
Free-flowing Reach of the Tennessee River below the Wilson Dam, Colbert 
and Lauderdale Counties, Alabama

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Fish and Wildlife Service (Service; also, ``we'', ``us'', 
``our'') proposes to reintroduce 16 federally listed endangered mussels 
(Alabama lampmussel (Lampsilis virescens), birdwing pearlymussel 
(Conradilla caelata), clubshell (Pleurobema clava), cracking 
pearlymussel (Hemistena lata), Cumberland bean pearlymussel (Villosa 
trabalis), Cumberlandian combshell (Epioblasma brevidens), Cumberland 
monkeyface pearlymussel (Quadrula intermedia), dromedary pearlymussel 
(Dromus dromas), fine-rayed pigtoe (Fusconaia cuneolus), oyster mussel 
(Epioblasma capsaeformis), purple cat's paw pearlymussel (Epioblasma 
obliquata obliquata), shiny pigtoe (Fusconaia cor), tubercled-blossom 
pearlymussel (Epioblasma torulosa torulosa), turgid-blossom 
pearlymussel (Epioblasma turgidula), winged mapleleaf mussel (Quadrula 
fragosa), and yellow-blossom pearlymussel (Epioblasma florentina 
florentina)) and 1 federally listed endangered aquatic snail (Anthony's 
riversnail (Athearnia anthonyi)) into historic habitat in the free-
flowing reach of the Tennessee River from about 1.4 river miles (RM) 
(2.2 kilometers [km]) below Wilson Dam to the backwaters of Pickwick 
Reservoir (RM 258.0 [412.8 km]) to (RM 246.0 [393.6 km]) in Colbert and 
Lauderdale counties, Alabama. These reintroduced populations are 
proposed to be classified as nonessential experimental populations 
(NEP) under section 10(j) of the Endangered Species Act of 1973, as 
amended (Act). Based on the evaluation of species experts and the 
State, none of these species are currently known to exist in this river 
reach or its tributaries. Ongoing surveys conducted by the Tennessee 
Valley Authority (TVA) and the State of Alabama over the past 20 years 
have failed to locate any individuals of the species proposed for NEP 
status under this rule.
    To ensure that any reintroduced species that move upstream to 
Wilson Dam or into the tributaries are covered by these NEP 
designations, we propose that the geographic boundaries of the NEPs 
extend from the base of the Wilson Dam (RM 259.4 [414.0 km]) to the 
backwaters of the Pickwick Reservoir (RM 246.0 [393.6 km]) and include 
the lower 5 RM (8 km) of all tributaries that enter the Wilson Dam 
tailwater. In the future, if any of the aforementioned mollusks are 
found upstream beyond the lower 5 RM (8 km) of these tributaries, the 
animals will be presumed to have come from the reintroduced NEP, and 
the boundaries of the NEP will be enlarged to include the entire range 
of the expanded population. No designation of critical habitat will be 
made for any of these NEPs. Additionally, we do not intend to change 
these NEPs from ``nonessential'' to ``essential'' or to ``threatened'' 
or ``endangered'' without the full cooperation of the State of Alabama 
and other affected parties within the NEP areas. These proposed 
reintroductions are recovery actions and part of a series of 
reintroductions and other recovery actions the Service, Federal and 
State agencies, and other partners are considering and conducting 
throughout the species' historic ranges. The only change to the NEPs we 
foresee would be elimination of the designations if the species are 
recovered and removed from the Act's protection. This proposed rule 
sets forth a plan for establishing the nonessential experimental 
population and provides for limited allowable legal take of the 
aforementioned mollusks within the defined NEP areas.

DATES: Comments from all interested parties must be submitted on or 
before July 26, 1999.

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

[[Page 28780]]

normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. Richard G. Biggins, Fish and 
Mollusk Recovery Coordinator (see Addresses section), telephone 704/
258-3939, Ext. 228, or facsimile 704/258-5330.

SUPPLEMENTARY INFORMATION:

Background

    Legislative: The Endangered Species Act Amendments of 1982, Pub. L. 
97-327, made significant changes to the Act, including the creation of 
section 10(j), which provides for the designation of specific 
populations of listed species as ``experimental populations'' (EP). 
Under previous authorities of the Act, the Service was permitted to 
reestablish (reintroduce) populations of a listed species into 
unoccupied portions of its historic range for conservation and recovery 
purposes. However, local opposition to reintroduction efforts, stemming 
from concerns by some about potential restrictions, and prohibitions on 
Federal and private activities contained in sections 7 and 9 of the 
Act, reduced the effectiveness of reintroduction as a management tool.
    Under section 10(j), a population of a listed species reestablished 
outside its current range but within its probable historic range may be 
designated as ``experimental,'' at the discretion of the Secretary of 
the Interior, if reintroduction of the EP furthers the conservation of 
the listed species. An EP must be separated geographically from 
nonexperimental populations of the same species. Designation of a 
population as an EP increases our management flexibility.
    Additional management flexibility exists if the Secretary of the 
Interior finds the EP to be ``nonessential'' to the continued existence 
of the species. For purposes of section 7 (except section 7(a)(1), 
which requires Federal agencies to use their authorities to conserve 
listed species), NEPs located outside National Wildlife Refuge or 
National Park lands are treated under 50 CFR part 17.83(a) as if they 
are proposed for listing. This means that Federal agencies are 
obligated to confer (as if the species were only proposed for listing), 
as opposed to consult (required for a listed species), on any actions 
authorized, funded, or carried out by them that are likely to 
jeopardize the continued existence of the species (see ``Management'' 
section). NEPs located on National Wildlife Refuge or National Park 
lands are treated as threatened, and formal consultation may be 
required. Activities undertaken on private land are not affected by 
section 7 of the Act unless they are authorized, funded, or carried out 
by a Federal agency.
    For the purposes of section 9 of the Act, endangered species 
designated as EPs or NEPs are treated as threatened species. Therefore, 
special rules can be written that lessen restrictions regarding take of 
the covered listed species from the EP or NEP area [see under ``Special 
rules--invertebrates (3)(i-iii)'' sections below].
    Individual animals used in establishing an EP or NEP can be removed 
from a source population if their removal is not likely to jeopardize 
the continued existence of the species (see ``Status of Reintroduced 
Populations'' section of these rules) and a permit has been issued in 
accordance with 50 CFR part 17.22.
    Justification for the proposal, listing history, and the dates of 
any recovery plans developed for the 16 mussels and 1 snail proposed 
for these NEPs are presented below in the ``Biological'' section. 
Recovery plans for these species guide recovery efforts, outline 
recommended recovery tasks, and set forth a series of recovery criteria 
(e.g., number of restored historic populations) that must be met before 
the species can be considered for removal from the Federal List of 
Endangered and Threatened Wildlife and Plants.
    Biological: In a December 9, 1996, letter from the Director of the 
Alabama Division of Game and Fish (ADGF) to the Regional Director of 
the Service's Southeast Region, the ADGF Director stated:

    Because of recent improvements in water quality, due primarily 
to the U.S. Environmental Protection Agency's Clean Water Act of 
1971 and the Tennessee Valley Authority's committal to maintenance 
of good water quality below their dams, mollusk populations below 
Guntersville, Wheeler, and Wilson Dams are in excellent condition.

    The Director of the ADGF further stated:

    Although several species have been extirpated from these areas 
in the past, both mussels and snails which now occur there are 
abundant and a healthy range of size classes are present.

    Based on the improving status of mollusks in these river reaches 
and the fact that recent advances in mussel culture techniques will 
likely lead to the availability of endangered juvenile mussels for 
release, the ADGF Director requested that we consider designating NEP 
status for the reintroduction of federally listed mussel and snail 
species that historically existed in the riverine habitat below these 
dams.
    A Service biologist met with representatives of the ADGF in January 
1997 to discuss the possibility of designating NEP status for the 
reintroduction of federally listed mollusks into the tailwaters of 
Guntersville, Wheeler, and Wilson Dams. The consensus at that meeting 
was that: (1) the tailwaters of Wilson Dam (the remains of Muscle 
Shoals) provided the best opportunity for successfully reestablishing 
federally listed mollusks; and (2) the tailwaters of Guntersville and 
Wheeler Dams should be considered for mollusk reintroductions at a 
later time.
    Muscle Shoals (sometimes referred to as Mussel Shoals), a 53-mile 
(85-km) reach of the Tennessee River in Colbert and Lauderdale 
Counties, Alabama, once supported the world's greatest assemblage of 
freshwater mussels (van der Schalie 1939) and was one of the finest 
mussel habitats ever known (Isom 1969). Ortmann (1924) stated that 
there was no other place on earth that could compare to this shoal with 
respect to freshwater mussels. This river reach historically contained 
nearly 80 percent of all the mussel taxa known from the entire 
Tennessee River system (ca. 100 taxa) and about 25 percent of the total 
North American mussel fauna (ca. 300 taxa). Ortmann (1925) listed 69 
mussel species and varieties from this shoal complex. Stansbery (1964), 
using current nomenclatural concepts, excluding subspecies, and adding 
a species not reported by Ortmann (1925), reported the mussel diversity 
at 63 species. A biologist with the ADGF (J. Garner, personal 
communication, 1997) combined historic distribution records (Ortmann 
1925, van der Schalie 1939, Scruggs 1960, Stansbery 1964, Gooch et al. 
1979) with personal observations and the observations of malacologists 
(scientists who study molluscs) familiar with the area (P. Yokley and 
T. Richardson, University of North Alabama, and S. Ahlstedt, U.S. 
Geological Survey, personal communication, 1997) and found that a total 
of 78 mussel taxa had been reported from Muscle Shoals. Goodrich (1931) 
reported that Anthony's riversnail also occurred at Muscle Shoals. 
However, the species is no longer found in the area (Garner, personal 
communication, 1997).
    With the completion of Wilson Dam (completed 1924), Wheeler Dam 
(completed in 1936), and Pickwick Dam (completed in 1938), about 41 RM 
(66 km) of shoal habitat were impounded. Although some mussel species 
survived in the remaining 12 RM (19 km) of shoal habitat between Wilson 
Dam and the backwaters of Pickwick Reservoir, much of the reach's 
mussel diversity and abundance began to disappear. Based

[[Page 28781]]

largely on a 1931 survey of Muscle Shoals, van der Schalie (1939) 
reported the resident mussel fauna at 40 species; Stansbery (1964) 
listed 30 species from a 1963 mussel survey of remaining shoal habitat; 
and Isom (1969) reported that 31 species existed on the shoal. Garner 
(personal communication, 1997) reviewed current and recent historic 
records (last 20 years) and concluded that possibly as many as 44 
mussel species, including 6 federally listed mussels; fanshell 
(Cyprogenia stegaria), orange-foot pimple back pearlymussel 
(Plethobasus cooperianus), pink mucket (Lampsilis abrupta), ring pink 
(Obovaria retusa), rough pigtoe (Pleurobema plenum), and white 
wartyback pearlymussel (Plethobasus cicatricosus); are known or 
presumed to still exist in the free-flowing riverine habitat below 
Wilson Dam. (Note: As these six listed mollusks exist or are believed 
to still exist in this river reach, they cannot be included in the NEP. 
However, these populations could be augmented with artificially 
propagated juveniles.) Based on a review of the most recent records, it 
is presumed that 34 mussel species, including 16 federally listed 
mussels and the Anthony's riversnail, have been extirpated from the 
Muscle Shoals complex (Garner, personal communication, 1997).
    Although many aquatic mollusks have been lost from Muscle Shoals, 
habitat quality has been improving in the remaining shoal habitat in 
recent years. The Tennessee Valley Authority (TVA) (1993), reporting on 
their Clean Water Initiative, rated macroinvertebrates below Wilson Dam 
as excellent. They stated: ``The 1993 results indicate continued 
improvement in the benthos [bottom dwelling organisms].'' The Reservoir 
Fish Assemblage Index, a measure TVA uses to rate the health of the 
fish fauna at sites throughout the Tennessee River valley, was rated as 
good in the Wilson Dam tailwater during 1993, 1994, and 1996; no figure 
was given for 1995 (E. Scott, TVA, personal communication, 1997). 
Additionally, the ADGF Director, in his December 9, 1996, letter to the 
Service, points to the improving water quality and the improved health 
of mussel and snail populations below Wilson Dam and other TVA dams on 
the Tennessee River in Alabama.
    The Tennessee River from about 1.4 RM (2.2 km) below Wilson Dam to 
the backwaters of Pickwick Reservoir [about 12 RM (19 km)] now appears 
suitable for a mollusk reintroduction effort for several reasons, as 
follows: (1) habitat quality in the Wilson Dam tailwater has improved; 
(2) existing aquatic mollusk populations have responded positively to 
the improved habitat quality; (3) Muscle Shoals historically contained 
a rich mollusk fauna, and some of the shoal habitat that once supported 
this fauna still remains; and (4) the reestablishment of listed 
mollusks to historic habitat is identified as a high-priority task in 
listed aquatic mollusk recovery plans. Based on these factors and 
discussions with knowledgeable individuals with regard to the 
endangered mollusks of the Tennessee River, we propose to reintroduce 
16 federally endangered mussels (Alabama lampmussel (Lampsilis 
virescens), birdwing pearlymussel (Conradilla caelata), clubshell 
(Pleurobema clava), cracking pearlymussel (Hemistena lata), Cumberland 
bean pearlymussel (Villosa trabalis), Cumberlandian combshell 
(Epioblasma brevidens), Cumberland monkeyface pearlymussel (Quadrula 
intermedia), dromedary pearlymussel (Dromus dromas), fine-rayed pigtoe 
(Fusconaia cuneolus), oyster mussel (Epioblasma capsaeformis), purple 
cat's paw pearlymussel (Epioblasma obliquata obliquata), shiny pigtoe 
(Fusconaia cor), tubercled-blossom pearlymussel (Epioblasma torulosa 
torulosa), turgid-blossom pearlymussel (Epioblasma turgidula), winged 
mapleleaf mussel (Quadrula fragosa), and yellow-blossom pearlymussel 
(Epioblasma florentina florentina)) and 1 federally listed endangered 
aquatic snail (Anthony's riversnail (Athearnia anthonyi)) into historic 
habitat in the free-flowing reach of the Tennessee River from about 1.4 
RM (2.2 km) below Wilson Dam to the backwaters of Pickwick Reservoir, 
Tennessee River, Colbert and Lauderdale counties, Alabama. These 
reintroduced populations are proposed to be classified as NEPs under 
section 10(j) of the Act (see the ``Status of Reintroduced 
Populations'' section for a description of the proposed NEPs).
    The Alabama lampmussel (Lampsilis virescens) (Lea 1858), a 
Tennessee River system endemic, was listed as an endangered species on 
June 14, 1976 (41 FR 24062). A recovery plan for this species was 
completed in July 1985 (Service 1985a). The Alabama lampmussel was 
historically known from seven rivers in the Tennessee River system 
(Ortmann 1918, Bogan and Parmalee 1983, Service 1985a). The species was 
last collected at Muscle Shoals prior to 1925 (Ortmann 1925) and is 
presumed to be extirpated from the shoal. Currently, the species is 
known to survive only in the upper Paint Rock River system, Jackson 
County, Alabama (Service 1985a). The delisting objectives in the 
recovery plan call for: (1) restoring the viability of the population 
in the Paint Rock River and its tributaries; (2) reestablishing or 
discovering viable populations in two additional rivers; and (3) 
ensuring there are no foreseeable threats to the continued existence of 
any of the populations. No downlisting criteria are provided in the 
recovery plan.
    The birdwing pearlymussel (Conradilla caelata) (Conrad 1834) was 
listed as an endangered species on June 14, 1976 (41 FR 24064), and a 
recovery plan for the species was finalized in July 1984 (Service 
1984a). This species was originally known from 11 rivers in the 
Tennessee River system, and one record exists from an unknown location 
in the Cumberland River. The species was last collected from Muscle 
Shoals prior to 1925 (Ortmann 1925) and is presumed to be extirpated 
from the shoal. It currently survives in the Clinch and Powell Rivers 
in Tennessee and Virginia, and in the Duck and Elk Rivers, Tennessee 
(Service 1984a). The delisting objectives presented in the recovery 
plan call for: (1) restoring the viability of the populations in the 
Clinch and Powell Rivers; (2) reestablishing or discovering viable 
populations in three additional rivers (only two rivers if Columbia Dam 
on the Duck River is not built); (3) ensuring there are no foreseeable 
threats to the continued existence of any of the populations; and (4) 
noticeable improvements in coal-related problems and substrate quality 
in the Powell River and no increase in coal-related sedimentation in 
the Clinch River. No downlisting criteria are given in the recovery 
plan.
    The clubshell (Pleurobema clava) (Lamarck 1819) was listed as an 
endangered species on January 22, 1993 (58 FR 5642). A recovery plan 
for the species was finalized in September 1993 (Service 1993a). This 
widespread species occurred in the Ohio River and Lake Erie basins but 
now survives in only a few small and isolated populations in both 
basins (Service 1993a). It was last found at Muscle Shoals prior to 
1925 (Ortmann 1925) and is presumed to no longer survive in this river 
reach. The downlisting objectives in the recovery plan call for the 
establishment of ten viable populations and ensuring there are no 
foreseeable threats to the continued existence of any of the 
populations. The delisting objectives call for: (1) the establishment 
of ten viable populations; (2) populations to be large enough to 
survive a single adverse ecological event; and (3) ensuring that there 
are no foreseeable threats to the continued existence of any of the 
populations.

[[Page 28782]]

    The cracking pearlymussel (Hemistena lata) (Rafinesque 1820) was 
listed as an endangered species on September 28, 1989 (54 FR 39853). A 
recovery plan for the species was finalized in July 1991 (Service 
1991). This widespread species historically occurred in the Ohio, 
Cumberland, and Tennessee River systems (Bogan and Parmalee 1983, 
Service 1991). It has been extirpated throughout much of its range. It 
was last collected at Muscle Shoals prior to 1925 (Ortmann 1925) and is 
presumed to no longer survive in this river reach. It is presently 
known to survive at only a few shoals in the Clinch and Powell Rivers 
in Tennessee and Virginia (Bogan and Parmalee 1983, Neves 1991). This 
species possibly survives in the Green River, Kentucky, and below 
Pickwick Reservoir in the Tennessee River, Tennessee (Service 1991). 
The downlisting objectives in the recovery plan call for the 
establishment of five viable populations and ensuring that there are no 
foreseeable threats to the continued existence of any of the 
populations. The delisting objectives call for the establishment of 
eight viable populations.
    The Cumberland bean pearlymussel (Villosa trabalis) (Conrad 1834) 
was listed as an endangered species on June 14, 1976 (41 FR 24064). A 
recovery plan for the species was approved August 22, 1984 (Service 
1984b). This species was historically known from ten river systems in 
the Cumberland and Tennessee river basins (Service 1984b). It was last 
collected at Muscle Shoals, which may represent its type locality, 
prior to 1925 (Ortmann 1925) and is presumed to be extirpated from the 
shoal. The Cumberland bean currently survives only in the Hiwassee 
River in Tennessee and in Buck Creek, the Little South Fork of the 
Cumberland River, and the Rockcastle River system in Kentucky (Service 
1984b). The delisting objectives in the recovery plan call for: (1) 
restoring the viability of its populations in Buck Creek, the 
Rockcastle River, and the Little South Fork River in Kentucky; (2) 
reestablishing or discovering viable populations in two additional 
rivers; and (3) ensuring that there are no foreseeable threats to the 
continued existence of any of the populations. No downlisting criteria 
are given in the recovery plan.
    The Cumberland monkeyface pearlymussel (Quadrula intermedia) 
(Conrad 1836) was listed as an endangered species on June 24, 1976 (41 
FR 24064). A recovery plan for the species was completed in November 
1983 (Service 1983a). This species was historically known from 11 
rivers in the Tennessee River system (Service 1983a). It was last 
collected from Muscle Shoals around 1900 by R.E. Call and A.A. Hinkley 
(Ortmann 1925) and is presumed to be extirpated from the shoal. 
Currently, the species survives only at a few shoals in the Powell 
River, Tennessee and Virginia, and the Elk and Duck Rivers, Tennessee 
(Service 1983a). The delisting objectives presented in the recovery 
plan call for: (1) restoring the viability of the populations in the 
Powell and Elk Rivers; (2) reestablishing or discovering viable 
populations in two additional rivers; and (3) ensuring that there are 
no foreseeable threats to the continued existence of any of the 
populations. No downlisting criteria are given in the recovery plan.
    The Cumberlandian combshell (Epioblasma brevidens) (Lea 1831) was 
listed as an endangered species on January 10, 1997 (62 FR 1647). This 
mussel was historically distributed throughout much of the 
Cumberlandian Region of the Tennessee and Cumberland River drainages in 
Alabama, Kentucky, Tennessee, and Virginia (Gordon 1991). Currently, 
only small populations survive in a few river reaches in both river 
systems (Gordon 1991). The species was last collected from Muscle 
Shoals prior to 1925 (Ortmann 1925) and is presumed to be extirpated 
from the shoal. Although no Cumberlandian combshell recovery plan has 
been developed, a recovery outline, which briefly enumerates 
anticipated recovery actions, was developed prior to the final listing 
decision. The recovery outline identified reintroduction into historic 
habitat as a method that would likely be needed to recover the species.
    The dromedary pearlymussel (Dromus dromas) (Lea 1845) was listed as 
an endangered species on June 24, 1976 (41 FR 24064). A recovery plan 
for the species was completed in November 1983 (Service 1983b). This 
species was historically widespread in the Cumberland and Tennessee 
River systems (Bogan and Parmalee 1983). It was last collected at 
Muscle Shoals prior to 1931 (van der Schalie 1939) and is presumed to 
be extirpated from the shoal. The species survives at a few shoals in 
the Powell and Clinch Rivers, Tennessee and Virginia, and possibly in 
the Cumberland River, Tennessee (Service 1983b, Neves 1991). The 
delisting objectives in the recovery plan call for: (1) restoring the 
viability of the populations in the Clinch and Powell Rivers; (2) 
reestablishing viable populations in three additional rivers; and (3) 
ensuring there are no foreseeable threats to the continued existence of 
any of the populations. No downlisting criteria are provided in the 
recovery plan.
    The fine-rayed pigtoe (Fusconaia cuneolus) (Lea 1840) was listed as 
an endangered species on June 14, 1976 (41 FR 24064). A recovery plan 
for the species was approved in September 1984 (Service 1984c). This 
species was historically known from 15 Tennessee River tributaries and 
is currently known from seven rivers (Service 1984c). The species was 
last collected from Muscle Shoals prior to 1925 (Ortmann 1925) and is 
presumed to be extirpated from the shoal. The recovery objectives call 
for: (1) restoring the viability of the populations in the Clinch, 
Powell, and North Fork Holston Rivers and in the Little River and 
Copper Creek (Clinch River tributaries); (2) reestablishing or 
discovering one additional viable population; and (3) ensuring there 
are no foreseeable threats to the continued existence of any of the 
populations. No downlisting criteria are given.
    The oyster mussel (Epioblasma capsaeformis) (Lea 1834) was listed 
as an endangered species on January 10, 1997 (62 FR 1647). This mussel 
was historically distributed throughout much of the Cumberlandian 
Region of the Tennessee and Cumberland River drainages (Gordon 1991). 
Currently, only small populations survive in a few river reaches in 
both river systems (Gordon 1991). The species was last collected from 
Muscle Shoals prior to 1925 (Ortmann 1925) and is presumed to be 
extirpated from the shoal. Although no oyster mussel recovery plan has 
been developed, a recovery outline, which briefly enumerates 
anticipated recovery actions, was developed prior to the final listing 
decision. The recovery outline identified reintroduction into historic 
habitat as a method that would likely be needed to recover the species.
    The purple cat's paw pearlymussel (Epioblasma obliquata obliquata) 
(Rafinesque 1820) was listed as an endangered species on July 10, 1990 
(55 FR 28210). A recovery plan for the species was finalized in March 
1992 (Service 1992). This once widespread species historically occurred 
in the larger rivers of the Ohio River system (Service 1992). The 
species is currently known from two apparently nonreproducing 
populations (Green River, Kentucky, and Cumberland River, Tennessee) 
and one reproducing population in Killbuck Creek, Muskingum River 
system, Ohio. It was last collected at Muscle Shoals by A. E. Ortmann 
sometime prior to 1925 (Ortmann 1925) and is presumed to no longer 
survive in this river reach. The downlisting objectives in the recovery

[[Page 28783]]

plan call for: (1) the establishment of four viable populations; (2) 
two naturally produced year classes to exist in each of the four 
populations; (3) biological studies on the species to have been 
completed; and (4) recovery measures to have resulted in an increase in 
population density and/or length of the river inhabited. The delisting 
objectives call for the establishment of six viable populations in 
addition to criteria (2) through (4) above.
    The shiny pigtoe (Fusconaia cor) (Conrad 1834) was listed as an 
endangered species on June 14, 1976 (41 FR 24064). A recovery plan for 
the species was completed in July 1984 (Service 1984d). This species 
was historically known from the Tennessee River and ten of its 
tributaries. It is currently known from five river systems; the Clinch, 
Powell, North Fork Holston, Elk, and Paint Rock (Service 1984d). The 
species was last collected at Muscle Shoals prior to 1925 (Ortmann 
1925) and is presumed to be extirpated from the shoal. The delisting 
objectives call for: (1) restoring the viability of the populations in 
the Clinch, Powell, North Fork Holston, and Paint Rock Rivers; (2) 
reestablishing or discovering one additional viable population; and (3) 
ensuring there are no foreseeable threats to the continued existence of 
any of the populations. No downlisting criteria are provided in the 
recovery plan.
    The tubercled-blossom pearlymussel (Epioblasma torulosa torulosa) 
(Rafinesque 1820) was listed as an endangered species on June 14, 1976 
(41 FR 24062). A recovery plan for the species was completed in January 
1985 (Service 1985b). This species was historically known from nine 
rivers in the Ohio River system (Service 1985b). The species was last 
collected at Muscle Shoals around 1900 by A. A. Hinkley (Ortmann 1925); 
it has not been collected anywhere since 1969 (Stansbery 1976, Service 
1985b). However, the Service continues its efforts to determine whether 
any extant populations occur and the species is therefore included in 
these NEP proposals. If the species is found and can be propagated, the 
area below Wilson Dam could be considered for a reintroduction effort 
without going through a separate NEP rulemaking. No downlisting or 
delisting criteria are presented in the recovery plan. However, the 
plan does call for recovery efforts to be reevaluated if the species is 
found.
    The turgid-blossom pearlymussel (Epioblasma turgidula) (Lea 1858) 
was listed as an endangered species on June 14, 1976 (41 FR 24062). A 
recovery plan for the species was completed in January 1985 (Service 
1985b). This widespread species was historically known from 12 rivers 
in Arkansas, Missouri, Tennessee, and Alabama (Service 1985b). The 
species was last collected at Muscle Shoals (its type locality, along 
with the Cumberland River, Tennessee) prior to 1925 (Ortmann 1925); it 
has not been collected anywhere since the early 1960s (Stansbery 1971, 
Service 1985b). However, the Service continues its efforts to determine 
whether any extant populations occur and the species is therefore 
included in these NEP proposals. If the species is found and can be 
propagated, the area below Wilson Dam could be considered for a 
reintroduction effort without going through a separate NEP rulemaking. 
No downlisting or delisting criteria are presented in the recovery 
plan. However, the plan does call for recovery efforts to be 
reevaluated if the species is found.
    The winged mapleleaf mussel (Quadrula fragosa) (Conrad 1835) was 
listed as an endangered species on June 20, 1991 (56 FR 28349). The 
final recovery plan for the species was completed in June 1997 (Service 
1997). This species was historically reported from 34 rivers in 12 
states in the Mississippi River drainage (Service 1997). It is now 
believed to be extirpated from all but one remnant population in the 
St. Croix River between Minnesota and Wisconsin. The species was 
reported from the Tennessee River below Wilson Dam by Scruggs (1960). 
However, our 1997 Recovery Plan reports that the record may be the 
mapleleaf (Q. quadrula) instead of the winged mapleleaf. As the winged 
mapleleaf was historically reported from the Wilson Dam tailwater, it 
is included in this proposed NEP. However, because of the question 
regarding the identification of the collection, the winged mapleleaf 
will not be released into the NEP area until this question is resolved. 
The downlisting objectives in the recovery plan call for: (1) the 
existence of three distinct viable populations in at least two 
tributaries of the Mississippi River basin; and (2) the long-term 
protection of all three populations. Delisting objectives call for: (1) 
the existence of five distinct viable populations; and (2) the long-
term protection of all five populations.
    The yellow-blossom pearlymussel (Epioblasma florentina florentina) 
(Lea 1857) was listed as an endangered species on June 14, 1976 (41 FR 
24062). A recovery plan for the species was completed in January 1985 
(Service 1985b). This species was historically known from 13 rivers in 
the Cumberland and Tennessee River systems (Service 1985b). The species 
was last collected at Muscle Shoals, its type locality, prior to 1925 
(Ortmann 1925); it has not been collected anywhere in over 50 years 
(Stansbery 1971, Service 1985b). However, the Service continues its 
efforts to determine whether any extant populations occur and the 
species is therefore included in these NEP proposals. If the species is 
found and can be propagated, the area below Wilson Dam could be 
considered for a reintroduction effort without going through a separate 
NEP rulemaking. No downlisting or delisting criteria are presented in 
the recovery plan; however, it does call for the recovery efforts to be 
reevaluated if the species is found.
    Anthony's riversnail (Athearnia anthonyi) was listed as an 
endangered species on April 15, 1994 (59 FR 17994). The final recovery 
plan for the species was completed in August 1997 (Service 1997). This 
snail was historically found in the Tennessee River and the lower 
reaches of some of its tributaries from Muscle Shoals, Colbert and 
Lauderdale counties, Alabama, upstream to the Clinch and Nolichucky 
Rivers, Tennessee (Bogan and Parmalee 1983). Currently, two populations 
are known to survive; one in Limestone Creek, Limestone County, 
Alabama, and one in the Tennessee River and the lower portion of the 
Sequatchie River (a tributary to this reach of the Tennessee River), 
Marion County, Tennessee, and Jackson County, Alabama (Service 1996). 
It is apparently extirpated from Muscle Shoals (Garner, personal 
communication, 1997). The downlisting objectives in the recovery plan 
call for: (1) the establishment of four viable populations; (2) two 
naturally produced year classes to exist in each of the four 
populations; (3) biological studies on the species to have been 
completed; (4) noticeable improvements in water and substratum quality 
where habitat is degraded; (5) each of the populations to be protected 
from present and foreseeable threats; and (6) all four populations to 
remain stable or increase over a 10-year period. The delisting 
objectives call for the establishment of six viable populations in 
addition to criteria (2) through (5) above and for six populations to 
remain stable or increase over a 15-year period.
    The recovery objectives in the recovery plans and recovery outlines 
for the aforementioned species generally agree that, to reach recovery: 
(1) existing populations should be restored to viable

[[Page 28784]]

levels; (2) the species should be protected from threats to their 
continued existence; and (3) viable populations should be reestablished 
in historic habitat. The number of secure, viable populations (existing 
and restored) needed to achieve recovery varies from species to 
species, depending on the extent of the species' former range (i.e., 
species that were once widespread require a greater number of 
populations for recovery than species that were historically more 
restricted in distribution). However, the reestablishment of historic 
populations is a critical component to the recovery of all these 
species.

Preliminary Notification and Comment

    On June 18, 1997, we notified (by mail, 54 letters) potentially 
affected congressional offices, Federal and State agencies, local 
governments, and interested parties that we were considering proposing 
NEP status for 17 mollusks. We received six written responses.
    TVA suggested that although reintroduced Cumberlandian mussel 
species might survive below Wilson Dam, they might not be able to 
reproduce there. Based on the improved reproductive success of the 
mussel fauna below Wilson Dam, we are optimistic that at least some of 
the Cumberlandian species will reproduce. However, even if these 
species are unable to reproduce, the establishment of nonreproducing 
populations of listed Cumberlandian mussels will assist in the recovery 
effort. Mussels are long-lived (40 years or more); thus, any surviving 
mussels could be available to researchers and managers for a number of 
years after they are reintroduced.
    TVA cautioned that current conditions (i.e., variations in hydro 
power discharges, seasonal low dissolved oxygen levels, urban related 
impacts) and potential impacts (i.e., invasion of zebra mussels, 
navigation improvements, and additional municipal developments) are 
likely to limit the success of mollusk reintroductions below Wilson 
Dam. We agree that there are many factors that could limit the success 
of these proposed mollusk reintroductions, but there is always a risk 
of failure with any EP reintroduction. There are only a few river 
reaches in the Tennessee River basin that appear to have suitable 
habitat for reintroductions. Our goal is to recover the region's 
federally listed mussels; therefore, we will attempt to reestablish 
populations in as many reaches as possible.
    TVA encouraged us to evaluate the reintroduction sites before any 
mollusks are released. The ADGF, in cooperation with the Service, is 
evaluating specific reaches of the Wilson Dam tailwaters for 
reintroductions.
    Although TVA expressed some concerns regarding the potential 
success of reintroducing listed mollusks below Wilson Dam, their 
response to the notice was generally positive. They agreed that now 
(because of advances in mussel propagation technology and water quality 
improvements below many of their reservoirs) ``* * * may be an 
appropriate time to start reintroducing and augmenting mussel stocks 
within their historic ranges * * *'' in the Tennessee River system. 
They further stated that designating NEPs below Wilson Dam would not 
result ``* * * in any additional regulatory burden for TVA,'' and they 
offered to assist in reintroducing mollusks below Wilson Dam. We 
appreciate TVA's comments and their generally positive assessment of 
the notice, and we especially appreciate their offer to assist in 
mussel reintroductions below Wilson Dam. Our agencies have had a long 
and productive relationship with regard to mussel recovery issues, and 
we look forward to a continued partnership that will work toward 
recovering the Tennessee River valley's aquatic mollusk resources.
    The Director of the ADGF reconfirmed his support for the project 
and stated: ``This is an opportunity to take a major step towards 
restoring the native fauna of our rivers to their historic diversity.''
    Although the proposed action will not occur within the State of 
Tennessee, the Executive Director of the Tennessee Wildlife Resources 
Agency (TWRA) supported the designation of NEPs and mollusk 
reintroductions below Wilson Dam. He stated:

    We understand that this is part of the ongoing program conducted 
by state and federal agency partners to improve the status of these 
mollusks where they no longer need endangered species protection.

    A consulting firm (Firm) for the City of Florence, Alabama, (City) 
provided information on the City's plans to construct a submerged 
muliport diffuser in the Tennessee River below Wilson Dam as part of a 
sewer system improvement project. The Firm stated:

    We hope that you will coordinate your department's restocking 
program with the City's plans to avoid the areas that may be 
affected by both the relocation program and subsequent diffuser 
construction.

    We are aware of the City's proposed construction project, and we 
assured the Firm and the City that the reintroduction of endangered 
mollusks under this proposed NEP designation would not negatively 
impact the City's proposed sewer system improvement project.
    Letters of support were also received from the University of North 
Alabama and a local chapter of the Sierra Club.

Status of Reintroduced Populations

    We propose to reintroduce populations of 16 mussels (Alabama 
lampmussel, birdwing pearlymussel, clubshell, cracking pearlymussel, 
Cumberland bean pearlymussel, Cumberlandian combshell, Cumberland 
monkeyface pearlymussel, dromedary pearlymussel, fine-rayed pigtoe, 
oyster mussel, purple cat's paw pearlymussel, shiny pigtoe, tubercled-
blossom pearlymussel, turgid-blossom pearlymussel, winged mapleleaf 
mussel, and yellow-blossom pearlymussel))and 1 freshwater snail 
(Anthony's riversnail) in the free-flowing reach of the Tennessee River 
from about 1.4 river miles (RM) (2.2 kilometers [km]) below Wilson Dam 
to the backwaters of Pickwick Reservoir (RM 258.0 [412.8 kilometers 
[km]) to RM 246.0 [393.6 km])in Colbert and Lauderdale counties, 
Alabama.
    These populations are proposed to be designated NEPs according to 
the provisions of section 10(j) of the Act. None of these species are 
known to currently exist in this river reach or in tributaries to this 
reach nor are they expected to populate the area immediately below 
Wilson Dam. Thus, to give the regulatory relief provided by a NEP 
designation for any reintroduced listed mollusk that may move upstream 
to the base of Wilson Dam or into tributaries of this reach, we propose 
that the geographic boundaries of the NEP designation extend from the 
base of the Wilson Dam (RM 259.4 [414.0 km] to the backwaters of the 
Pickwick Reservoir (RM 246.0 [393.6 km]) and include the lower 5 RM (8 
km) of all tributaries that enter the river reach from the tailwaters 
of Wilson Dam to the backwaters of Pickwick Reservoir. Additionally, if 
any of the reintroduced endangered mollusks move upstream beyond the 
lower 5 RM (8 km) of these tributaries, the animals will be presumed to 
have come from the reintroduced NEP, and the boundaries of the NEP will 
be enlarged to include the entire range of the expanded population. 
Thus, the proposed NEP designation includes the following: the free-
flowing reach of the Tennessee River from the base of Wilson Dam 
downstream to the backwaters of Pickwick Reservoir (about 12 RM [19 
km]) and 5 RM (8 km) upstream of all tributaries to this reach in 
Colbert and Lauderdale Counties, Alabama.

[[Page 28785]]

    We considered designating EP status instead of NEP status for these 
reintroductions. However, the designation of NEP status, which provides 
for the maximum degree of management flexibility and regulatory relief 
was necessary to gain the support of local governments, State agencies, 
industry, local communities, and landowners. Therefore, we believe it 
is the appropriate designation for reintroducing these species under 
section 10(j). We will ensure, through our section 10 permit authority 
and section 7 consultation process, that the use of animals from any 
donor population for this proposed reintroduction project is not likely 
to jeopardize the continued existence of the species or the donor 
population. Therefore, if any introduced populations become established 
and are subsequently lost, it would not reduce the likelihood of the 
species' survival in the wild or jeopardize its continued existence. In 
fact, the anticipated success of these reintroductions will enhance the 
species' conservation status by extending their present range into 
currently unoccupied historic habitat.

Location of Reintroduced Population

    The sites for the proposed reintroductions (free-flowing reach of 
the Tennessee River between Wilson Dam and the backwaters of Pickwick 
Reservoir, Colbert and Lauderdale Counties, Alabama) are within the 
proposed NEP areas; these NEP areas are totally isolated from existing 
populations of these species by large reservoirs; and none of these 
mollusks are known to occur in reservoir habitat. These reservoirs 
will, therefore, act as barriers to the expansion of these species 
upstream or downstream in the main stem of the Tennessee River and 
ensure that these proposed NEPs remain geographically isolated and 
easily identifiable as distinct populations.

Management

    The proposed dates for these reintroductions, the specific sites 
(between about 1.4 river miles RM [2.2 km] below Wilson Dam to the 
backwaters of Pickwick Reservoir RM 258.0 (412.8 km) to RM 246.0 (393.6 
km) in Colbert and Lauderdale counties, Alabama) where the mussel and 
snail species will be released, and the actual number of individuals to 
be released cannot be determined at this time. Individual endangered 
mussels to be used in the proposed NEP reintroductions will be, 
primarily, artificially propagated juveniles. However, it is possible 
that wild adult stock of some mussels could be released into the area 
(see below). Mussel propagation and juvenile rearing technology are 
currently being developed using nonendangered surrogate species, and it 
is expected that juvenile endangered mussels of some species will be 
available for the reintroduction effort within 2 to 3 years. The parent 
stock for juveniles to be used for the NEPs will come from existing 
wild populations, and in most cases they will be returned live to that 
wild population. Under some circumstances, adult endangered mussels 
could be permanently relocated to propagation facilities or be moved 
directly into the NEP areas. Anthony's riversnails will be collected 
from a large naturally reproducing population located in the Tennessee 
River, Jackson County, Alabama, and Marion County, Tennessee, and 
relocated directly into the NEP area.
    The permanent removal of adults from the wild for their use in 
reintroduction efforts could occur when one or more of the following 
conditions exists: (1) sufficient adult endangered mussels and 
Anthony's riversnails are available within a donor population to 
withstand the loss without jeopardizing their continued existence; (2) 
the species must be removed from an area because of an imminent threat 
that is likely to eliminate the population or specific individuals 
present; or (3) when the donor population is not reproducing. To ensure 
that the nonlethal use of a parent stock or the permanent removal of 
adults is not likely to jeopardize the continued existence of the donor 
population of the species, a section 10 (a)(1)(A) permit will be issued 
before any take occurs. We will coordinate these actions with the 
appropriate lead Regions and State natural resources agencies.
    We do not believe these proposed reintroductions would conflict 
with existing or proposed human activities or hinder public utilization 
of the proposed NEP areas. If this proposed rule is finalized, the NEPs 
would be treated as threatened species under all provisions of the Act, 
except section 7 (see ``Legislative'' section of these rules). The NEPs 
are treated under section 7(a)(4) of the Act as species proposed to be 
listed under the Act. For proposed species, section 7(a)(4) requires 
that Federal agencies confer with the Service on actions that the 
Federal agency itself finds are likely to jeopardize a species' 
continued existence. We then produce a conference report outlining 
measures that could be taken to avoid jeopardy. However, the measures 
we recommend are only advisory. The Federal agency is not required to 
implement any of the recommended measures, and the Act does not 
prohibit the Federal agency from implementing the Federal action as was 
originally planned. Therefore, these proposed reintroductions are not 
expected to conflict with existing or proposed Federal activities in 
the NEP areas.
    The Act, under section 10(j), allows special rules (protective 
regulations), which contain all prohibitions and exceptions regarding 
the taking of individual animals, to be written for experimental 
populations. Thus, section 17.85 (a)(3) of the proposed special rule 
defines the circumstances under which it will be a violation of the Act 
to take animals from these introduced populations. We do not expect 
these proposed reintroductions to conflict with existing or proposed 
Federal activities or to hinder the public's utilization of the NEP 
areas. We will work cooperatively with private landowners and will not 
impose any land-use restrictions on private lands for the recovery of 
these species without prior concurrence from the landowners.

Public Comments Solicited

    We intend for any rule that is finally adopted to be as effective 
as possible. Therefore, we invite the public, concerned government 
agencies, the scientific community, industry, and other interested 
parties to submit comments or recommendations concerning any aspect of 
this proposed rule (see ``Addresses'' section).
    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated?, 
(2) Does the rule contain technical language or jargon that interferes 
with its clarity?, (3) Does the format of the rule (grouping and order 
of sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity?, (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (A ``section'' is preceded by the 
symbol ``Sec. '' and a numbered heading; for example, Sec. 17.11 
Endangered and threatened wildlife), (5) Is the description of the rule 
in the ``Supplementary Information'' section of the preamble helpful in 
understanding the rule? What else could we do to make the rule easier 
to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, room 7229, 1849 C Street, NW, Washington, DC 20240. 
You may also e-

[[Page 28786]]

mail the comments to this address: E[email protected]
    However, as noted earlier, all comments related to the proposed 
reintroduction to establish the nonessential experimental populations 
should be directed to the Service's Asheville, North Carolina Field 
Office (see ADDRESS section). Comments must be received within 60 days 
of publication of this proposed rule in the Federal Register.
    Any final decision on this proposed rule will take into 
consideration the comments and any additional information received. 
These may lead to a final rule that differs from this proposal.

National Environmental Policy Act

    We have determined that the issuance of a proposed rule for these 
NEPs is categorically excluded under our National Environmental Policy 
Act procedures (516 DM 6, Appendix 1.4 B (6)), which states:

    * * * The reintroduction or supplementation (e.g., stocking) of 
native, formerly native, or established species into suitable 
habitat within their historical or established range, where no or 
negligible environmental disturbances are anticipated * * *.

Paperwork Reduction Act

    This proposed rule contains no collections of information requiring 
approval from the Office of Management and Budget under 44 U.S.C. 3501 
et seq.

Required Determinations

    This proposed rule to designate NEP status for 16 mussels and 1 
freshwater snail in the free-flowing reach of the Tennessee River below 
Wilson Dam in Colbert and Lauderdale Counties, Alabama, will not have 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.).
    Shellfish harvesting in the United States is dominated by small 
firms. Of the 441 firms included in Standard Industrial Code 0913 for 
``establishments primarily engaged in the catching or taking of 
shellfish,'' 421 have fewer than 20 employees, 353 have fewer than five 
employees. These figures include saltwater shellfishing (lobsters, 
crabs, clams, etc.) so freshwater mussel harvesting is only a fraction 
of this small industry (Office of Advocacy, U.S. Small Business 
Administration based on data provided by the Department of Commerce, 
Bureau of the Census).
    The rule is not expected to have any impact on the use of the 
river. Mussels are harvested from the relevant reach primarily by 
diving from one or two person boats. Harvesters are seeking larger 
mussels of a dozen specific permitted species to be used as seed in the 
Japanese cultured pearl industry. Two endangered species are already 
present in the area and divers are careful to identify species in situ 
to avoid carrying extra weight to the surface. The added species are 
not expected to complicate this task. Other river activities will not 
be affected.
    The final rule will not significantly change costs to industry or 
government. Furthermore, this rule produces no adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of United States enterprises to compete with foreign-based 
enterprises in domestic or export markets.
    This rule is not a significant regulatory action and was not 
subject to review by the Office of Management and Budget under 
Executive Order 12866. It is not a major rule under 5 U.S.C. 804(2), 
the Small Business Regulatory Enforcement Fairness Act. This rule will 
not have an annual economic effect of $100 million or adversely affect 
an economic sector, productivity, jobs, the environment, or other units 
of government. A cost-benefit and economic analysis not required. The 
area affected by this rule consists of a very limited and discrete 
geographic segment (only 12 river miles) of the Tennessee River in 
northern Alabama. Therefore no significant impacts on existing economic 
activities associated with this stream reach as a result of this rule 
are anticipated.
    This rule will not create inconsistencies with other agencies' 
actions. Designating reintroduced populations of federally listed 
species as NEPs significantly reduces the Act's regulatory requirements 
regarding the reintroduced listed species within the NEP. Because of 
the substantial regulatory relief provided by NEP designations, the 
Service does not believe the reintroduction of these mollusks would 
conflict with existing or proposed human activities or hinder public 
utilization of the Tennessee River system.
    This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Because there are no expected impacts or restrictions to existing human 
uses of the Tennessee River as a result of this rule, no entitlements, 
grants, user fees, loan programs or the rights and obligations of their 
recipients are expected to occur.
    This rule will not raise novel legal or policy issues. The Service 
has previously promulgated more than a dozen section 10 (j) rules for 
experimental populations of other listed threatened and 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.
    We have determined and certified, pursuant to the Unfunded Mandates 
Reform Act, 2 U.S.C. 1501 et seq., that this rulemaking will not impose 
a cost of $100 million or more in any given year on local or State 
governments or private entities. Further, this rule will not 
``significantly or uniquely'' affect small governments. A Small 
Government Agency Plan is not required. The ADGF, which manages the 
aquatic mollusks in the Tennessee River below Wilson Dam, requested the 
Service consider this reintroduction under a NEP designation. However, 
they will not be required by the Act to specifically manage for any 
reintroduced species.
    This proposed rule has been reviewed under Executive Order 12630, 
the Attorney General Guidelines, Departmental Guidelines, and the 
Attorney General Supplemental Guidelines to determine the taking 
implications of this proposed rule if it were promulgated as currently 
drafted. The implementation of this proposed rule will not result in 
any ``taking'' under the 5th Amendment. In accordance with Executive 
Order 12630, the rule does not have significant takings implications. A 
takings implication assessment is not required.
    Designating reintroduced populations of federally listed species as 
NEPs significantly reduces the Act's regulatory requirements regarding 
the reintroduced listed species within the NEP. Under NEP designations, 
the Act requires a Federal agency to confer with the Service if the 
agency determines that its action within the NEP is likely to 
jeopardize the continued existence of the reintroduced species. 
However, even if an agency action would totally eliminate a 
reintroduced species from a NEP and jeopardize the species continued 
existence, the Act does not compel a Federal agency to stop a project, 
deny issuing a permit, or cease any activity. Additionally, regulatory 
relief can be provided here regarding take of reintroduced species 
within NEP areas, and the special rule has been proposed stipulating 
that there would be no violation of the Act for unavoidable and 
unintentional take (including killing or injuring) of these 
reintroduced mollusks, when such take

[[Page 28787]]

is non-negligent and incidental to a legal activity (e.g., boating, 
commercial navigation, commercial musseling, fishing) and the activity 
is in accordance with State laws or regulations. Because of the 
substantial regulatory relief provided by NEP designations, the Service 
does not believe the reintroduction of these mollusks would conflict 
with existing or proposed human activities or hinder public utilization 
of the Tennessee River system.
    This proposed rule has been reviewed under Executive Order 12612 to 
determine Federalism considerations in policy formulation and 
implementation. This proposed rule does not require a Federalism 
assessment under Executive Order 12612 since it will not have any 
significant Federalism effects as described in the order. Nevertheless, 
we have endeavored to cooperate with the Alabama Division of Game and 
Fish in the preparation of this proposed rule.
    The Department of the Interior has determined that this proposed 
regulation meets the applicable standards provided in sections (3)(a) 
and (3)(b)(2) of Executive Order 12988.

Literature Cited

Bogan, A. E., and P. W. Parmalee. 1983. Tennessee's Rare Wildlife, 
Volume II: The Mollusks. 123 pp.
Gooch, C. H., W. J. Pardue, and D. C. Wade. 1979. Recent mollusk 
investigations on the Tennessee River, 1978. Tennessee Valley 
Authority, Water Quality and Ecology Branch. 126 pp.
Goodrich, C. 1931. The pleurocerid genus Eurycaelon. Occasional 
Papers of the Museum of Zoology 223:1-11.
Gordon, M. E. 1991. Species accounts for Cumberland elktoe 
(Alasmidonta atropurpurea), Cumberlandian combshell (Epioblasma 
brevidens), oyster mussel (Epioblasma capsaeformis), rough 
rabbitsfoot (Quadrula cylindrica strigillata), and purple bean 
(Villosa perpurpurea). Unpublished reports to The Nature 
Conservancy. 75 pp.
Isom, B. G. 1969. The mussel resources of the Tennessee River. 
Malacologia 7(2-3): 397-425.
Neves, R. J. 1991. Mollusks. IN: Virginia's Endangered Species, 
Proceedings of a Symposium. Coordinated by Karen Terwilliger. 
McDonald & Woodward Publishing Co., Blacksburg, VA. 672 pp.
Ortmann, A. E. 1918. The nayades (freshwater mussels) of the upper 
Tennessee drainage with notes on synonymy and distribution. 
Proceedings of the American Philosophical Society 57:521-626.
------. 1924. Discussions and Correspondence--Mussel Shoals. Science 
60(1564):565-566.
------. 1925. The naiad fauna of the Tennessee River system below 
Walden Gorge. The American Midland Naturalist 9(8):321-372.
Scruggs, G. D. 1960. Status of freshwater mussel stocks in the 
Tennessee River. U.S. Fish and Wildlife Service, Special Report, 
Fisheries, 370:1-40.
Stansbery, D. H. 1964. The Mussel (Muscle) Shoals of the Tennessee 
River revisited. Annual Report for 1964 of the American 
Malacological Union: 25-28.
------. 1971. Rare and endangered mollusks in Eastern United States. 
IN: S.E. Jorgenson and R.E. Sharp (Ed.). Proceedings of a Symposium 
on Rare and Endangered Mollusks (naiades), U.S. Bureau of Sport 
Fisheries and Wildlife, U.S. Fish and Wildlife Service, Department 
of the Interior, Twin Cities, MN. 79 pp.
------. 1976. Naiad mollusks. IN: Endangered and Threatened Plants 
and Animals of Alabama. Bulletin, Alabama Museum of Natural History, 
No. 2:42-52.
Tennessee Valley Authority. 1993. Tennessee Valley reservoir and 
stream quality--1993. Summary of vital signs and use suitability 
monitoring. Vol. 1. 200 pp.
U.S. Fish and Wildlife Service. 1983a. Cumberland Monkeyface 
Pearlymussel Recovery Plan. Atlanta, GA. 59 pp.
------. 1983b. Dromedary Pearlymussel Recovery Plan. Atlanta, GA. 58 
pp.
------. 1984a. Birdwing Pearlymussel Recovery Plan. Atlanta, GA. 56 
pp.
------. 1984b. Cumberland Bean Pearlymussel Recovery Plan. Atlanta, 
GA. 58 pp.
------. 1984c. Fine-rayed Pigtoe Recovery Plan. Atlanta, GA. 67 pp.
------. 1984d. Shiny Pigtoe Recovery Plan. Atlanta, GA. 67 pp.
------. 1985a. Alabama Lampmussel Recovery Plan. Atlanta, GA. 41 pp.
------. 1985b. Tubercled-blossom Pearlymussel, Turgid-blossom 
Pearlymussel, and Yellow-blossom Pearlymussel Recovery Plan. 
Atlanta, GA. 42 pp.
------. 1991. Cracking Pearlymussel Recovery Plan. Atlanta, GA. 25 
pp.
------. 1992. Purple Cat's Paw Pearlymussel Recovery Plan. Atlanta, 
GA. 26 pp.
------. 1993a. Clubshell and Northern Riffleshell Recovery Plan. 
Hadley, MA. 55 pp.
------. 1997. Recovery Plan for Anthony's Riversnail. Atlanta, GA. 
21 pp.
------. 1997. Winged Mapleleaf Mussel (Quadrula fragosa) Recovery 
Plan. Ft. Snelling, MN. 69 pp.
van der Schalie, H. 1939. Additional notes on the naiades 
(freshwater mussels) of the lower Tennessee River. The American 
Midland Naturalist 22:452-457.

Author

    The principal author of this proposed rule is Richard G. Biggins 
(see Addresses section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we hereby propose to amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations as set forth 
below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
    2. In Sec. 17.11(h). revise the entries in the table under CLAMS 
for ``Clubshell'': ``Combshell, Cumberlandian''; ``Lampmussel, 
Alabama''; ``Mussel, Oyster''; ``Mussel, winged mapleleaf''; 
``Pearlymussel, birdwing''; ``Pearlymussel, cracking''; ``Pearlymussel, 
Cumberland bean''; ``Pearlymussel, Cumberland monkeyface''; 
``Pearlymussel, dromedary''; ``Pearlymussel, purple cat's paw''; 
``Pearlymussel, tubercled-blossom''; ``Pearlymussel, turgid-blossom''; 
and ``Pearlymussel, yellow-blossom''; ``Pigtoe, fine-rayed''; ``Pigtoe, 
shiny''; and the table entry under SNAILS for ``Riversnail, Anthony's'' 
to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                Experimental
------------------------------------------------------                        population or
                                                                               vertebrate                                         Critical     Special
                                                         Historic range     population where       Status        When listed      habitat       rules
           Common name              Scientific name                           endangered or
                                                                               threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
              Clams
 
 

[[Page 28788]]

 
                   *                  *                  *                  *                  *                  *                  *
Clubshell.......................  Pleurobema clava...  U.S.A. (AL, IL,     NA................  E              488                        NA           NA
                                                        IN, KY, MI, OH,
                                                        PA, TN, WV).
    Do..........................  ...... do..........  ...... do.........  U.S.A. (AL--The     XN             488, ____                  NA     17.85(a)
                                                                            free-flowing
                                                                            reach of the
                                                                            Tennessee R. from
                                                                            the base of
                                                                            Wilson Dam
                                                                            downstream to the
                                                                            backwaters of
                                                                            Pickwick
                                                                            Reservoir [about
                                                                            12 RM (19 km)]
                                                                            and 5 RM [8 km]
                                                                            upstream of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
Combshell, Cumberlandian........  Epioblasma           U.S.A. (AL, KY,     NA................  E              602                        NA           NA
                                   brevidens.           TN, VA).
    Do..........................  ...... do..........  ...... do.........  U.S.A. (AL--        XN             602, ____                  NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
Lampmussel, Alabama.............  Lampsilis virescens  U.S.A. (AL, TN)...  NA................  E              15                         NA           NA
    Do..........................  ...... do..........  ...... do.........  U.S.A. (AL--        XN             15, ____                   NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
Mussel, oyster..................  Epioblasma           U.S.A. (AL, KY,     NA................  E              602                        NA           NA
                                   capsaeformis.        TN, VA).
    Do..........................  ...... do..........  ...... do.........  U.S.A. (AL--        XN             602, ____                  NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
Mussel, winged mapleleaf........  Quadrula fragosa...  U.S.A. (AL, IA,     NA................  E              426                        NA           NA
                                                        IL, IN, KY, MN,
                                                        MO, NE, OH, OK,
                                                        TN, WV).
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--        XN             426, ____                  NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
Pearlymussel, birdwing..........  Conradilla caelata.  U.S.A. (AL, TN,     NA................  E              15                         NA           NA
                                                        VA).
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--        XN             15, 9/16____               NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
Pearlymussel, cracking..........  Hemistena (=         U.S.A. (AL, IL,     NA................  E              366                        NA           NA
                                   Lastena) lata.       IN, KY, OH, TN,
                                                        VA).
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--        XN             366, 9/16____              NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).

[[Page 28789]]

 
 
                   *                  *                  *                  *                  *                  *                  *
Pearlymussel, Cumberland bean...  Villosa (=           U.S.A. (AL, KY,     NA................  E              15                         NA           NA
                                   Micromya) trabalis.  TN, VA).
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--        XN             15, 9/16____               NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see
                                                                            17.85(a))..
Pearlymussel, Cumberland          Quadrula intermedia  U.S.A. (AL, TN,     NA................  E              15                         NA           NA
 monkeyface.                                            VA).
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--        XN             15, 9/16____               NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
                *                   *                   *                   *                   *                   *                   *
Pearlymussel, dromedary.........  Dromus Dromas......  U.S.A. (AL, KY,     NA................  E              15                         NA           NA
                                                        TN, VA).
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--        XN 1           5, ____                    NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
                *                   *                   *                   *                   *                   *                   *
Pearlymussel, purple cat's paw..  Epioblasma           U.S.A. (AL, IL,     NA................  E              394                        NA           NA
                                   obliquata            IN, KY, OH, TN).
                                   obliquata.
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--        XN             394, ____                  NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
                *                   *                   *                   *                   *                   *                   *
Pearlymussel, tubercled-blossom.  Epioblasma           U.S.A. (AL, IL,     NA................  E              15                         NA           NA
                                   (=Dysnomia)          IN, KY, TN, WV).
                                   torulosa torulosa.
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--        XN             15, ____                   NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
Pearlymussel, turgid-blossom....  Epioblasma           U.S.A. (AL, TN)...  NA................  E              15                         NA           NA
                                   (=Dysnomia)
                                   turgidula.
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--        XN             15, ____                   NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
                *                   *                   *                   *                   *                   *                   *
Pearlymussel, yellow-blossom....  Epioblasma           U.S.A. (AL, TN)...  NA................  E              15                         NA           NA
                                   florentina
                                   florentina .
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--        XN             15, ____                   NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
Pigtoe, fine-rayed..............  Fusconaia cuneolus.  U.S.A. (AL, TN,     NA................  E              15                         NA           NA
                                                        VA).
    Do..........................  ......do...........  ......Do..........  U.S.A. (AL--        XN             15, ____                   NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
Pigtoe, shiny...................  Fusconaia cor (=     U.S.A. (AL, TN,     NA................  E              15                         NA           NA
                                   edgariana).          VA).

[[Page 28790]]

 
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--        XN             15, ____                   NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
 
                   *                  *                  *                  *                  *                  *                  *
             Snails
 
 
                   *                  *                  *                  *                  *                  *                  *
Riversnail, Anthony's...........  Athearnia anthonyi.  U.S.A. (AL, GA,     NA................  E              538                        NA           NA
                                                        TN).
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--        XN             538, ____                  NA     17.85(a)
                                                                            deregulated zone
                                                                            in the Tennessee
                                                                            R., see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Section 17.85 is amended by adding text to read as follows:


Sec. 17.85  Special rules--invertebrates.

    (a)(1) What species are covered by this special rule?
    (i)

------------------------------------------------------------------------
         Common name                        Scientific name
------------------------------------------------------------------------
Alabama lampmussel...........  Lampsilis virescens.
Anthony's riversnail.........  Athearnia anthonyi.
birdwing pearlymussel........  Conradilla caelata.
clubshell....................  Pleurobema clava.
cracking pearlymussel........  Hemistena lata.
Cumberland bean pearlymussel.  Villosa trabalis.
Cumberlandian combshell......  Epioblasma brevidens.
Cumberland monkeyface          Quadrula intermedia.
 pearlymussel.
dromedary pearlymussel.......  Dromus dromas.
fine-rayed pigtoe............  Fusconaia cuneolus.
oyster mussel................  Epioblasma capsaeformis.
purple cat's paw pearlymussel  Epioblasma o. obliquata.
shiny pigtoe.................  Fusconaia cor.
tubercled-blossom              Epioblasma torulosa torulosa.
 pearlymussel.
turgid-blossom pearlymussel..  Epioblasma turgidula.
winged mapleleaf mussel......  Quadrula fragosa.
yellow-blossom pearlymussel..  Epioblasma f. florentina.
------------------------------------------------------------------------

    (ii) [Reserved]
    (2) Where does this special rule apply?
    (i) The designated recovery areas classified as NEPs for the 
aforementioned 17 mollusks in paragraph (a)(1)(i) of this section are 
within the species' historic ranges and are defined as follows:

    The free-flowing reach of the Tennessee River from the base of 
Wilson Dam downstream to the backwaters of Pickwick Reservoir (RM 
258.0 [412.8 km] to RM 246.0 [393.6 km]about 12 RM [19 km]) and 5 RM 
(8 km) upstream of all tributaries to this reach in Colbert and 
Lauderdale Counties, Alabama.

    (ii) None of the aforementioned species is known from any of the 
tributaries to the free-flowing reach of the Tennessee River below 
Wilson Dam, Colbert and Lauderdale Counties, Alabama. In the future, if 
any of the aforementioned 17 mollusks are found upstream beyond the 
lower 5 RM (8 km) of these tributaries, we will presume the animals to 
have come from the reintroduced NEP, and the boundaries of the NEP will 
be enlarged to include the entire range of the expanded population.
    (3) What is the legal status of the species described in the rule?
    (i) The species identified for reintroduction in paragraph (a)(1) 
of this section are listed as ``endangered'' and protected under 50 CFR 
17.11 (h). The Alabama lampmussel, birdwing pearlymussel, clubshell, 
cracking pearlymussel, Cumberland bean pearlymussel, Cumberlandian 
combshell, Cumberland monkeyface pearlymussel, dromedary pearlymussel, 
fine-rayed pigtoe, oyster mussel, purple cat's paw pearlymussel, shiny 
pigtoe, tubercled-blossom pearlymussel, turgid-blossom pearlymussel, 
winged mapleleaf mussel, yellow-blossom pearlymussel, and Anthony's 
riversnail, identified in paragraph (a)(2) of this section, are 
nonessential experimental populations. These NEPs will be managed in 
accordance with these provisions.
    (ii) We find, under 50 CFR 17.81 (b), that the reintroduction of an 
experimental population of the aforementioned 17 mollusks into their 
historic range will further their conservation. We also find, under 50 
CFR 17.81(c)(2) that the experimental population is not essential to 
the continued existence of the species in the wild.
    (4) What activities are prohibited?

[[Page 28791]]

    (i) You may not take any of the aforementioned 17 mollusks in the 
wild within these species' NEP areas except in accordance with the 
applicable laws or regulations of the State of Alabama and as provided 
by these rules. We may refer unauthorized take of these species to the 
appropriate authorities for prosecution.
    (ii) This provision does not exempt Federal agencies from complying 
with section 7(a)(4) of the Act, which requires them to confer with the 
Service if they propose an action that is likely to jeopardize the 
continued existence of one or more of these species.
    (iii) You may not possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever any of the aforementioned 17 
mollusks, or parts thereof, from these NEPs that are taken or possessed 
in violation of these regulations or in violation of the applicable 
laws or regulations of the State of Alabama.
    (iv) You may not attempt to commit, solicit another to commit, or 
cause to be committed any offense defined in this paragraph (a).
    (5) What activities are allowed?
    (i) Throughout the entire NEP areas for the aforementioned 17 
mollusks, you will not be in violation of the Act for unavoidable and 
unintentional take (including killing or injuring) of these species 
when such take is incidental to a legal activity, such as fishing, 
boating, commercial navigation, trapping, wading, mussel harvesting, or 
other activities, and the activity is in accordance with the laws or 
regulations of the State of Alabama.
    (ii) Throughout the entire NEP areas for the aforementioned 17 
mollusks, no Federal agency or its contractors will be in violation of 
the Act for take of these species resulting from any authorized agency 
action.
    (6) What are we doing for these species?
    (i) We will continuously evaluate the progress of the 
aforementioned 17 mollusk reintroductions. 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.
    (ii) We will work cooperatively with private landowners and will 
not impose any land-use restrictions on private lands for the recovery 
of these species without prior concurrence from the landowners.
    (iii) We do not intend to change the NEP designations to 
``essential experimental,'' ``threatened,'' or ``endangered'' without 
the full cooperation of the State of Alabama and the affected parties 
within the NEP areas. Additionally, we will not designate critical 
habitat for these NEPs. We cannot designate critical habitat under the 
NEP classification, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).
    (b) [Reserved]

    Dated: April 30, 1999.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-13490 Filed 5-26-99; 8:45 am]
BILLING CODE 4310-55-P