[Federal Register Volume 66, Number 115 (Thursday, June 14, 2001)]
[Rules and Regulations]
[Pages 32250-32264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14878]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE92


Endangered and Threatened Wildlife and Plants; Establishment of 
Nonessential Experimental Population Status for 16 Freshwater Mussels 
and 1 Freshwater Snail (Anthony's Riversnail) in the Free-Flowing Reach 
of the Tennessee River below the Wilson Dam, Colbert and Lauderdale 
Counties, AL

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), plan to 
reintroduce 16 federally listed endangered mussels--Alabama lampmussel 
(Lampsilis virescens), birdwing pearlymussel (Conradilla caelata), 
clubshell (Pleurobema clava), cracking pearlymussel (Hemistena lata), 
Cumberland bean (pearlymussel) (Villosa trabalis), Cumberlandian 
combshell (Epioblasma brevidens), Cumberland monkeyface pearlymussel 
(Quadrula intermedia), dromedary pearlymussel (Dromus dromas), fine-
rayed pigtoe (Fusconaia cuneolus), oyster mussel (Epioblasma 
capsaeformis), catspaw (purple cat's paw pearlymussel) (Epioblasma 
obliquata obliquata), shiny pigtoe (Fusconaia cor), tubercled blossom 
(pearlymussel) (Epioblasma torulosa torulosa), turgid blossom 
(pearlymussel) (Epioblasma turgidula), winged mapleleaf (mussel) 
(Quadrula fragosa), and yellow blossom (pearlymussel) (Epioblasma 
florentina florentina)--and 1 federally listed endangered aquatic 
snail, Anthony's riversnail (Athearnia anthonyi), into historical 
habitat in the free-flowing reach of the Tennessee River. The 
geographic boundaries of the nonessential experimental populations 
(NEPs) extend from the base of the Wilson Dam (River Mile 259.4 (414.0 
kilometers)) to the backwaters of the Pickwick Reservoir (RM 246.0 
(393.6 km)) and include the lower 5 RM (8 km) of all tributaries that 
enter the Wilson Dam tailwaters.
    These reintroduced populations will be classified as NEPs under 
section 10(j) of the Endangered Species Act of 1973, as amended (Act). 
Based on the evaluation of species experts, none of these species are 
currently known to exist in this river reach or its tributaries.
    These reintroductions are recovery actions and are part of a series 
of reintroductions and other recovery actions that the Service, Federal 
and State agencies, and other partners are considering and conducting 
throughout the species' historical ranges. This rule provides a plan 
for establishing the NEPs and provides for limited allowable legal 
taking of the aforementioned mollusks within the defined NEP Area.

DATES: The effective date of this rule is July 16, 2001.

ADDRESSES: The complete administrative file for this rule is available 
for inspection, by appointment, during normal business hours at the 
Asheville Field Office, U.S. Fish and Wildlife Service, 160 Zillicoa 
Street, Asheville, North Carolina 28801.

FOR FURTHER INFORMATION CONTACT: Mr. Richard G. Biggins at 828/258-
3939, Ext. 228; facsimile 828/258-5330; and e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    1. Legislative: Congress made significant changes to the Endangered 
Species Act of 1973 (Act), as amended, with the addition of section 
10(j), which provides for the designation of specific reintroduced 
populations of listed species as ``experimental populations.'' 
Previously, we had authority to reintroduce populations into unoccupied 
portions of a listed species' historical range when doing so would 
foster the conservation and recovery of the species. However, local 
citizens often opposed these reintroductions because they were 
concerned about the placement of restrictions and prohibitions on 
Federal and private activities. Under section 10(j), the Secretary of 
Interior can designate reintroduced populations established outside the 
species' current range, but within its historical range, as 
``experimental.''
    Under the Act, species listed as endangered or threatened are 
afforded protection primarily through the prohibitions of section 9 and 
the requirements of section 7. Section 9 of the Act prohibits the take 
of a listed species. ``Take'' is defined by the Act as harass, harm, 
pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to 
engage in any such conduct. Section 7 of the Act outlines the 
procedures for Federal interagency cooperation to conserve federally 
listed species and protect designated critical habitats. It mandates 
all Federal agencies to determine how to use their existing authorities 
to further the purposes of the Act to aid in recovering listed species. 
It also states that Federal agencies will, in consultation with the

[[Page 32251]]

Service, insure that any action they authorize, fund, or carry out is 
not likely to jeopardize the continued existence of a listed species or 
result in the destruction or adverse modification of designated 
critical habitat. Section 7 of the Act does not affect activities 
undertaken on private lands unless they are authorized, funded, or 
carried out by a Federal agency.
    Section 10(j) is designed to increase our flexibility in managing 
an experimental population by allowing us to treat the population as 
threatened, regardless of the species' designation elsewhere in its 
range. Threatened designation gives us more discretion in developing 
and implementing management programs and special regulations for such a 
population and allows us to develop any regulations we consider 
necessary to provide for the conservation of a threatened species. In 
situations where we have experimental populations, most of the section 
9 prohibitions that apply to threatened species no longer apply, and 
the special rule contains the prohibitions and exceptions necessary and 
appropriate to conserve that species. Regulations for NEP's may be 
developed to be more compatible with routine human activities in the 
reintroduction area.
    Based on the best available information, we must determine whether 
experimental populations are ``essential,'' or ``nonessential,'' to the 
continued existence of the species. An experimental population that is 
essential to the survival of the species is treated as a threatened 
species. An experimental population that is nonessential to the 
survival of the species is also treated as a threatened species. 
However, for section 7 interagency cooperation purposes, if the NEP is 
located outside of a National Wildlife Refuge or National Park, it is 
treated as a species proposed for listing.
    For the purposes of section 7 of the Act, in situations where there 
is a nonessential experimental population located within a National 
Wildlife Refuge or National Park (treated as threatened), section 
7(a)(1) and the consultation requirements of section 7(a)(2) of the Act 
would apply. Section 7(a)(1) requires all Federal agencies to use their 
authorities to conserve listed species. Section 7(a)(2) requires that 
Federal agencies consult with the Service before authorizing, funding, 
or carrying out any activity that would likely jeopardize the continued 
existence of a listed species or adversely modify its critical 
habitats. When NEPs are located outside a National Wildlife Refuge or 
National Park, only two provisions of section 7 would apply; section 
7(a)(1) and section 7(a)(4). In these instances, NEPs provide 
additional flexibility because Federal agencies are not required to 
consult with us under section 7(a)(2). Section 7(a)(4) requires Federal 
agencies to informally confer with the Service on actions that are 
likely to jeopardize the continued existence of a proposed species. 
However, since we determined that the NEP is not essential to the 
continued existence of the species, it is very unlikely that we would 
ever determine jeopardy for a project impacting a species within an 
NEP.
    Individuals used to establish an experimental population may come 
from a donor population, provided their removal is not likely to 
jeopardize the continued existence of the species, and appropriate 
permits are issued in accordance with our regulations (50 CFR 17.22) 
prior to their removal.
    2. Biological: Muscle Shoals (sometimes referred to as Mussel 
Shoals), a 53 RM (85-km) reach of the Tennessee River in Colbert and 
Lauderdale Counties, Alabama, once supported the world's greatest 
assemblage of freshwater mussels (van der Schalie 1939) and was one of 
the finest mussel habitats ever known (Isom 1969). Ortmann (1924) 
stated that no other place on earth could compare to this shoal with 
respect to freshwater mussels. This river reach historically contained 
nearly 80 percent of all the mussel taxa known from the entire 
Tennessee River system (ca. 100 taxa) and about 25 percent of the total 
North American mussel fauna (ca. 300 taxa). Ortmann (1925) listed 69 
mussel species and varieties from this shoal complex. Stansbery (1964), 
using current nomenclatural concepts, excluding subspecies, and adding 
a species not reported by Ortmann (1925), reported the mussel diversity 
at 63 species. A biologist with the Alabama Division of Wildlife and 
Freshwater Fisheries (ADWFF) (J. Garner, personal communication, 1997) 
combined historic distribution records (Ortmann 1925, van der Schalie 
1939, Scruggs 1960, Stansbery 1964, Gooch et al. 1979) with personal 
observations and the observations of malacologists (scientists who 
study mollusks) familiar with the area (P. Yokley and T. Richardson, 
University of North Alabama, and S. Ahlstedt, U.S. Geological Survey, 
personal communication, 1997) and found that a total of 78 mussel taxa 
had been reported from Muscle Shoals. Goodrich (1931) reported that 
Anthony's riversnail also occurred at Muscle Shoals. However, the 
species is no longer found in the area (Garner, personal communication, 
1997).
    With the completion of Wilson Dam (completed in 1924), Wheeler Dam 
(completed in 1936), and Pickwick Dam (completed in 1938), about 41 RM 
(66 km) of shoal habitat were impounded. Although some mussel species 
survived in the remaining 12 RM (19 km) of shoal habitat between Wilson 
Dam and the backwaters of Pickwick Reservoir, much of the diversity and 
abundance of mussels in that reach began to disappear. Based largely on 
a 1931 survey of Muscle Shoals, van der Schalie (1939) reported the 
resident mussel fauna at 40 species; Stansbery (1964) listed 30 species 
from a 1963 mussel survey of remaining shoal habitat; and Isom (1969) 
reported that 31 species existed on the shoal. Garner (personal 
communication, 1997) reviewed current and recent historical records 
(last 20 years) and concluded that possibly as many as 44 mussel 
species, including 6 federally listed mussels--fanshell (Cyprogenia 
stegaria), orange-foot pimple back pearlymussel (Plethobasus 
cooperianus), pink mucket (Lampsilis abrupta), ring pink (Obovaria 
retusa), rough pigtoe (Pleurobema plenum), and white wartyback 
(pearlymussel) (Plethobasus cicatricosus)--are known, or presumed to 
still exist in the free-flowing riverine habitat below Wilson Dam. 
Because these six listed mollusks exist, or are believed to still exist 
in this river reach, they are not included in this reintroduction 
effort. However, these populations could be augmented with artificially 
propagated juveniles. They will retain their endangered status and 
associated protections. Based on a review of the most recent records, 
it is presumed that 34 mussel species, including 16 federally listed 
mussels and the Anthony's riversnail, have been extirpated from the 
Muscle Shoals complex (Garner, personal communication, 1997).
    Although many aquatic mollusks have been lost from Muscle Shoals, 
habitat quality has been improving in the remaining shoal habitat in 
recent years. The Tennessee Valley Authority (TVA) (1993), reporting on 
their Clean Water Initiative, rated macroinvertebrates below Wilson Dam 
as excellent. The Reservoir Fish Assemblage Index, a measure the TVA 
uses to rate the health of the fish fauna at sites throughout the 
Tennessee River valley, was rated as good in the Wilson Dam tailwaters 
during 1993, 1994, and 1996; no figure was given for 1995 (E. Scott, 
TVA, personal communication, 1997). Additionally, the ADWFF Director, 
in a December 9, 1996, letter to us, points to the improving water 
quality and the

[[Page 32252]]

improved health of mussel and snail populations below Wilson Dam and 
other TVA dams on the Tennessee River in Alabama.
    The Tennessee River from about 1.4 RM (2.2 km) below Wilson Dam to 
the backwaters of Pickwick Reservoir (about 12 RM (19 km)) now appears 
suitable for a mollusk reintroduction effort for several reasons: (1) 
habitat quality in the Wilson Dam tailwaters has improved; (2) existing 
aquatic mollusk populations have responded positively to the improved 
habitat quality; (3) Muscle Shoals historically contained a rich 
mollusk fauna, and some of the shoal habitat that once supported this 
fauna still remains; and (4) the reestablishment of listed mollusks to 
historic habitat is identified as a high-priority task in listed 
aquatic mollusk recovery plans.
    3. Recovery Efforts: The Alabama lampmussel (Lampsilis virescens) 
(Lea 1858), a Tennessee River system endemic, was listed as an 
endangered species on June 14, 1976 (41 FR 24064). We completed a 
recovery plan for this species in July 1985 (Service 1985a). The 
Alabama lampmussel was historically known from seven rivers in the 
Tennessee River system (Ortmann 1918, Bogan and Parmalee 1983, Service 
1985a). The species was last collected at Muscle Shoals prior to 1925 
(Ortmann 1925) and is presumed to be extirpated from the shoal. 
Currently, the species is known to survive only in the upper Paint Rock 
River system, Jackson County, Alabama (Service 1985a). The delisting 
objectives in the recovery plan call for: (1) restoring the viability 
of the population in the Paint Rock River and its tributaries; (2) 
reestablishing or discovering viable populations in two additional 
rivers; and (3) ensuring there are no foreseeable threats to the 
continued existence of any of the populations. No downlisting 
(reclassification from endangered to threatened) criteria are provided 
in the recovery plan.
    The birdwing pearlymussel (Conradilla caelata) (Conrad 1834) was 
listed as an endangered species on June 14, 1976 (41 FR 24064). We 
finalized a recovery plan for the species in July 1984 (Service 1984c). 
This species was originally known from 11 rivers in the Tennessee River 
system, and one record exists from an unknown location in the 
Cumberland River. The species was last collected from Muscle Shoals 
prior to 1925 (Ortmann 1925) and is presumed to be extirpated from the 
shoal. It currently survives in the Clinch and Powell Rivers in 
Tennessee and Virginia and in the Duck and Elk Rivers in Tennessee 
(Service 1984c). The delisting objectives presented in the recovery 
plan call for: (1) Restoring the viability of the populations in the 
Clinch and Powell Rivers; (2) reestablishing or discovering viable 
populations in three additional rivers (only two rivers if Columbia Dam 
on the Duck River is not built); (3) ensuring there are no foreseeable 
threats to the continued existence of any of the populations; and (4) 
noticeable improvements in coal-related problems and substrate quality 
in the Powell River and no increase in coal-related sedimentation in 
the Clinch River. No downlisting criteria are given in the recovery 
plan.
    The clubshell (Pleurobema clava) (Lamarck 1819) was listed as an 
endangered species on January 22, 1993 (58 FR 5642). We finalized a 
recovery plan for the species in September 1993 (Service 1993a). This 
widespread species occurred in the Ohio River and Lake Erie basins but 
now survives in only a few small and isolated populations in both 
basins (Service 1993a). It was last found at Muscle Shoals prior to 
1925 (Ortmann 1925) and is presumed no longer to survive in this river 
reach. The downlisting objectives in the recovery plan call for the 
establishment of 10 viable populations and ensuring there are no 
foreseeable threats to the continued existence of any of the 
populations. The delisting objectives call for: (1) The establishment 
of 10 viable populations; (2) populations to be large enough to survive 
a single adverse ecological event; and (3) ensuring that there are no 
foreseeable threats to the continued existence of any of the 
populations.
    The cracking pearlymussel (Hemistena lata) (Rafinesque 1820) was 
listed as an endangered species on September 28, 1989 (54 FR 39853). We 
finalized a recovery plan for the species in July 1991 (Service 1991). 
This widespread species historically occurred in the Ohio, Cumberland, 
and Tennessee River systems (Bogan and Parmalee 1983, Service 1991). It 
has been extirpated throughout much of its range. It was last collected 
at Muscle Shoals prior to 1925 (Ortmann 1925) and is presumed no longer 
to survive in this river reach. It is presently known to survive at 
only a few shoals in the Clinch and Powell Rivers in Tennessee and 
Virginia (Bogan and Parmalee 1983, Neves 1991). This species possibly 
survives in the Green River, Kentucky, and below Pickwick Reservoir in 
the Tennessee River, Tennessee (Service 1991). The downlisting 
objectives in the recovery plan call for the establishment of five 
viable populations and ensuring that there are no foreseeable threats 
to the continued existence of any of the populations. The delisting 
objectives call for the establishment of eight viable populations.
    The Cumberland bean (pearlymussel) (Villosa trabalis) (Conrad 1834) 
was listed as an endangered species on June 14, 1976 (41 FR 24064). A 
recovery plan for the species was approved August 22, 1984 (Service 
1984d). This species was historically known from 10 river systems in 
the Cumberland and Tennessee river basins (Service 1984d). It was last 
collected at Muscle Shoals, which may represent its type locality, 
prior to 1925 (Ortmann 1925) and is presumed to be extirpated from the 
shoal. The Cumberland bean currently survives only in the Hiwassee 
River in Tennessee and in Buck Creek, the Little South Fork of the 
Cumberland River, and the Rockcastle River system in Kentucky (Service 
1984d). The delisting objectives in the recovery plan call for: (1) 
Restoring the viability of its populations in Buck Creek, the 
Rockcastle River, and the Little South Fork River in Kentucky; (2) 
reestablishing or discovering viable populations in two additional 
rivers; and (3) ensuring that there are no foreseeable threats to the 
continued existence of any of the populations. No downlisting criteria 
are given in the recovery plan.
    The Cumberlandian combshell (Epioblasma brevidens) (Lea 1831) was 
listed as an endangered species on January 10, 1997 (62 FR 1647). This 
mussel was historically distributed throughout much of the 
Cumberlandian Region of the Tennessee and Cumberland River drainages in 
Alabama, Kentucky, Tennessee, and Virginia (Gordon 1991). Currently, 
only small populations survive in a few river reaches in both river 
systems (Gordon 1991). The species was last collected from Muscle 
Shoals prior to 1925 (Ortmann 1925) and is presumed to be extirpated 
from the shoal. Although there is no recovery plan for the 
Cumberlandian combshell, we developed a recovery outline, which briefly 
enumerates anticipated recovery actions, prior to publishing the final 
listing decision. The recovery outline identifies reintroduction into 
historic habitat as a method that would likely be needed to recover the 
species.
    The Cumberland monkeyface pearlymussel (Quadrula intermedia) 
(Conrad 1836) was listed as an endangered species on June 14, 1976 (41 
FR 24064). We completed a recovery plan for the species in July 1984 
(Service 1984a). This species was historically known from 11 rivers in 
the Tennessee River system (Service 1984a).

[[Page 32253]]

It was last collected from Muscle Shoals around 1900 by R. E. Call and 
A. A. Hinkley (Ortmann 1925) and is presumed to be extirpated from the 
shoal. Currently, the species survives only at a few shoals in the 
Powell River, Tennessee and Virginia, and the Elk and Duck Rivers, 
Tennessee (Service 1984a). The delisting objectives presented in the 
recovery plan call for: (1) Restoring the viability of the populations 
in the Powell and Elk Rivers; (2) reestablishing or discovering viable 
populations in two additional rivers; and (3) ensuring that there are 
no foreseeable threats to the continued existence of any of the 
populations. No downlisting criteria are given in the recovery plan.
    The dromedary pearlymussel (Dromus dromas) (Lea 1845) was listed as 
an endangered species on June 14, 1976 (41 FR 24064). We completed a 
recovery plan for the species in July 1984 (Service 1984b). This 
species was historically widespread in the Cumberland and Tennessee 
River systems (Bogan and Parmalee 1983). It was last collected at 
Muscle Shoals prior to 1931 (van der Schalie 1939) and is presumed to 
be extirpated from the shoal. The species survives at a few shoals in 
the Powell and Clinch Rivers, Tennessee and Virginia, and possibly in 
the Cumberland River, Tennessee (Service 1983b, Neves 1991). The 
delisting objectives in the recovery plan call for: (1) Restoring the 
viability of the populations in the Clinch and Powell Rivers; (2) 
reestablishing viable populations in three additional rivers; and (3) 
ensuring there are no foreseeable threats to the continued existence of 
any of the populations. No downlisting criteria are provided in the 
recovery plan.
    The fine-rayed pigtoe (Fusconaia cuneolus) (Lea 1840) was listed as 
an endangered species on June 14, 1976 (41 FR 24064). A recovery plan 
for the species was approved in September 1984 (Service 1984e). This 
species was historically known from 15 Tennessee River tributaries and 
is currently known from 7 rivers (Service 1984e). The species was last 
collected from Muscle Shoals prior to 1925 (Ortmann 1925) and is 
presumed to be extirpated from the shoal. The delisting objectives call 
for: (1) Restoring the viability of the populations in the Clinch, 
Powell, and North Fork Holston Rivers and in the Little River and 
Copper Creek (Clinch River tributaries); (2) reestablishing or 
discovering one additional viable population; and (3) ensuring there 
are no foreseeable threats to the continued existence of any of the 
populations. No downlisting criteria are given.
    The oyster mussel (Epioblasma capsaeformis) (Lea 1834) was listed 
as an endangered species on January 10, 1997 (62 FR 1647). This mussel 
was historically distributed throughout much of the Cumberlandian 
Region of the Tennessee and Cumberland River drainages (Gordon 1991). 
Currently, only small populations survive in a few river reaches in 
both river systems (Gordon 1991). The species was last collected from 
Muscle Shoals prior to 1925 (Ortmann 1925) and is presumed to be 
extirpated from the shoal. Although there is currently no recovery plan 
for the oyster mussel, we developed a recovery outline, which briefly 
enumerates anticipated recovery actions, prior to publishing the final 
listing decision. The recovery outline identified reintroduction into 
historic habitat as a method that would likely be needed to recover the 
species.
    The Catspaw (purple cat's paw pearlymussel) (Epioblasma obliquata 
obliquata) (Rafinesque 1820) was listed as an endangered species on 
July 10, 1990 (55 FR 28210). We finalized a recovery plan for the 
species in March 1992 (Service 1992). This 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 (the Green River in Kentucky and the 
Cumberland River in Tennessee) and one reproducing population in 
Killbuck Creek, Muskingum River system, Ohio. It was last collected at 
Muscle Shoals by A. E. Ortmann sometime prior to 1925 (Ortmann 1925) 
and is presumed no longer to survive in this river reach. The 
downlisting objectives in the recovery plan call for: (1) The 
establishment of four viable populations; (2) establishment of two 
naturally produced year classes in each of the four populations; (3) 
completion of biological studies on the species; and (4) increasing the 
population density and/or length of the river inhabited. The delisting 
objectives call for the establishment of six viable populations in 
addition to criteria (2) through (4) above.
    The shiny pigtoe (Fusconaia cor) (Conrad 1834) was listed as an 
endangered species on June 14, 1976 (41 FR 24064). We completed a 
recovery plan for the species in July 1984 (Service 1984f). This 
species was historically known from the Tennessee River and 10 of its 
tributaries. It is currently known from five river systems--the Clinch, 
Powell, North Fork Holston, Elk, and Paint Rock (Service 1984f). The 
species was last collected at Muscle Shoals prior to 1925 (Ortmann 
1925) and is presumed to be extirpated from the shoal. The delisting 
objectives call for: (1) Restoring the viability of the populations in 
the Clinch, Powell, North Fork Holston, and Paint Rock Rivers; (2) 
reestablishing or discovering one additional viable population; and (3) 
ensuring there are no foreseeable threats to the continued existence of 
any of the populations. No downlisting criteria are provided in the 
recovery plan.
    The tubercled blossom (pearlymussel) (Epioblasma torulosa torulosa) 
(Rafinesque 1820) was listed as an endangered species on June 14, 1976 
(41 FR 24064). We completed a recovery plan for the species in January 
1985 (Service 1985b). This species was historically known from nine 
rivers in the Ohio River system (Service 1985b). The species was last 
collected at Muscle Shoals around 1900 by A. A. Hinkley (Ortmann 1925); 
it has not been collected anywhere since 1969 (Stansbery 1976, Service 
1985b). However, we continue our efforts to determine whether any 
extant populations occur; thus, the species is included in this NEP 
rule. If the species is found and can be propagated, the area below 
Wilson Dam could be considered for a reintroduction effort without 
going through a separate NEP rulemaking. No downlisting or delisting 
criteria are presented in the recovery plan. However, the plan does 
call for recovery efforts to be reevaluated if the species is found.
    The turgid blossom (pearlymussel) (Epioblasma turgidula) (Lea 1858) 
was listed as an endangered species on June 14, 1976 (41 FR 24064). A 
recovery plan for the species was completed in January 1985 (Service 
1985b). This widespread species was historically known from 12 rivers 
in Arkansas, Missouri, Tennessee, and Alabama (Service 1985b). The 
species was last collected at Muscle Shoals (its type locality, along 
with the Cumberland River in Tennessee) prior to 1925 (Ortmann 1925); 
it has not been collected anywhere since the early 1960s (Stansbery 
1971, Service 1985b). However, we continue our efforts to determine 
whether any extant populations occur; thus, the species is therefore 
included in this NEP rule. If the species is found and can be 
propagated, the area below Wilson Dam could be considered for a 
reintroduction effort without going through a separate NEP rulemaking. 
No downlisting or delisting criteria are presented in the recovery 
plan. However, the plan does call for recovery efforts to be 
reevaluated if the species is found.

[[Page 32254]]

    The winged mapleleaf (mussel) (Quadrula fragosa) (Conrad 1835) was 
listed as an endangered species on June 20, 1991 (56 FR 28349). We 
completed the final recovery plan for the species in June 1997 (Service 
1997a). This species was historically reported from 34 rivers in 12 
States in the Mississippi River drainage (Service 1997a). It is now 
believed to be extirpated from all but one remnant population in the 
St. Croix River between Minnesota and Wisconsin. The species was 
recorded in the Tennessee River, Mussel Shoals, Alabama by Ortmann 
(1924). The downlisting objectives in the recovery plan call for: (1) 
The existence of three distinct viable populations in at least two 
tributaries of the Mississippi River basin and (2) the long-term 
protection of all three populations. Delisting objectives call for: (1) 
The existence of five distinct viable populations and (2) the long-term 
protection of all five populations.
    The yellow blossom (pearlymussel) (Epioblasma florentina 
florentina) (Lea 1857) was listed as an endangered species on June 14, 
1976 (41 FR 24064). We completed a recovery plan for the species in 
January 1985 (Service 1985b). This species was historically known from 
13 rivers in the Cumberland and Tennessee River systems (Service 
1985b). The species was last collected at Muscle Shoals, its type 
locality, prior to 1925 (Ortmann 1925); it has not been collected 
anywhere in over 50 years (Stansbery 1971, Service 1985b). However, we 
continue our efforts to determine whether any extant populations occur; 
thus, the species is included in this NEP rule. If the species is found 
and can be propagated, the area below Wilson Dam could be considered 
for a reintroduction effort without going through a separate NEP 
rulemaking. No downlisting or delisting criteria are presented in the 
recovery plan; however, it does call for the recovery efforts to be 
reevaluated if the species is found.
    Anthony's riversnail (Athearnia anthonyi) was listed as an 
endangered species on April 15, 1994 (59 FR 17994). We completed the 
final recovery plan for the species in August 1997 (Service 1997b). 
This snail was historically found in the Tennessee River and the lower 
reaches of some of its tributaries from Muscle Shoals, Colbert and 
Lauderdale Counties, Alabama, upstream to the Clinch and Nolichucky 
Rivers, Tennessee (Bogan and Parmalee 1983). Currently, two populations 
are known to survive--one in Limestone Creek, Limestone County, 
Alabama, and one in the Tennessee River and the lower portion of the 
Sequatchie River (a tributary to this reach of the Tennessee River), 
Marion County, Tennessee, and Jackson County, Alabama (Service 1997b). 
It is apparently extirpated from Muscle Shoals (Garner, personal 
communication, 1997). The downlisting objectives in the recovery plan 
call for: (1) The establishment of four viable populations; (2) 
establishment of two naturally produced year classes in each of the 
four populations; (3) completion of biological studies on the species; 
(4) documentation of noticeable improvements in water and substratum 
quality where habitat is degraded; (5) protection of each of the 
populations from present and foreseeable threats; and (6) maintaining 
all four populations as stable or increasing over a 10-year period. The 
delisting objectives call for the establishment of six viable 
populations in addition to criteria (2) through (5) above and for 
maintaining six populations as stable or increasing over a 15-year 
period.
    The recovery objectives in the recovery plans and recovery outlines 
for the aforementioned species generally agree that, to reach recovery: 
(1) Existing populations should be restored to viable levels; (2) the 
species should be protected from threats to their continued existence; 
and (3) viable populations should be reestablished in historic habitat. 
The number of secure, viable populations (existing and restored) needed 
to achieve recovery varies from species to species, depending on the 
extent of the species' former range (i.e., species that were once 
widespread require a greater number of populations for recovery than 
species that were historically more restricted in distribution). 
However, the reestablishment of historic populations is a critical 
component to the recovery of all these species.
    4. Reintroduction Site: In 1996, the Director of the ADWFF 
indicated that, due to recent improvements in water quality, mollusk 
populations below Guntersville, Wheeler, and Wilson Dams were in 
excellent condition. He indicated that, although several species have 
been extirpated from these areas in the past, both mussels and snails 
which now occur there are abundant and a healthy range of size classes 
are present.
    Based on the improving status of mollusks in these river reaches 
and the fact that recent advances in mussel culture techniques will 
likely lead to the availability of endangered juvenile mussels for 
release, the ADWFF Director requested that we consider designating NEP 
status for the reintroduction of federally listed mussel and snail 
species that historically existed in the riverine habitat below these 
dams.
    A Service biologist met with representatives of the ADWFF in 
January 1997 to discuss the possibility of designating NEP status for 
the reintroduction of federally listed mollusks into the tailwaters of 
Guntersville, Wheeler, and Wilson Dams. The consensus at that meeting 
was that: (1) The tailwaters of Wilson Dam (the remains of Muscle 
Shoals) provided the best opportunity for successfully reestablishing 
federally listed mollusks and (2) the tailwaters of Guntersville and 
Wheeler Dams should be considered for mollusk reintroductions at a 
later time.
    We will reintroduce populations of 16 mussels--Alabama lampmussel, 
birdwing pearlymussel, clubshell, cracking pearlymussel, Cumberland 
bean (pearlymussel), Cumberlandian combshell, Cumberland monkeyface 
pearlymussel, dromedary pearlymussel, fine-rayed pigtoe, oyster mussel, 
catspaw (purple cat's paw pearlymussel), shiny pigtoe, tubercled 
blossom (pearlymussel), turgid blossom (pearlymussel), winged mapleleaf 
(mussel), and yellow blossom (pearlymussel)--and 1 freshwater snail, 
Anthony's riversnail, into the historical habitat of the free-flowing 
reach of the Tennessee River from about RM 258.0 (412.8 km) (1.4 RM 
[2.2 km]) below Wilson Dam downstream to about RM 248.0 (396.8 km) (2 
miles [3.2 km]) above the backwaters of Pickwick Reservoir in Colbert 
and Lauderdale Counties, Alabama. None of these species is known to 
currently exist in this river reach or in tributaries to this reach.
    5. Reintroduction Procedures: The date the mollusks will be 
reintroduced, the number of individuals to be released, and the exact 
locations of the releases within the NEP Area cannot be determined at 
this time. Individual endangered mussels that will be used for these 
reintroductions will be primarily artificially propagated juveniles. 
However, it is possible that wild adult stock of some mussels could 
also be released into the area.
    Mussel propagation and juvenile rearing technology are currently 
being developed, and juvenile endangered mussels of some species could 
be available for reintroduction next year. The parent stock for 
juvenile mussels that will be used for the reintroductions will come 
from existing wild populations, and in most cases, they will be 
returned live to that wild population. Under some circumstances, adult 
endangered mussels could be permanently relocated to propagation 
facilities or could be moved directly into the NEP Area. Anthony's

[[Page 32255]]

riversnails will be collected from a large naturally reproducing 
population located in the Tennessee River, Jackson County, Alabama, and 
Marion County, Tennessee, and relocated directly into the NEP.
    The permanent removal of adults from the wild for their use in 
reintroduction efforts could occur when one or more of the following 
conditions exist: (1) Sufficient adult endangered mollusks are 
available within a donor population to sustain the loss without 
jeopardizing the species; (2) the species must be removed from an area 
because of an imminent threat that is likely to eliminate the 
population or specific individuals present in an area; or (3) when the 
population is not reproducing. An enhancement of propagation or 
survival permit under section 10 (a)(1)(A) of the Act will be issued 
before any take occurs, and we will coordinate these actions with the 
Service's appropriate lead regions and State natural resources 
agencies.

Status of Reintroduced Populations

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

Location of Reintroduced Population

    The NEP Area, which encompasses all the sites for the planned 
reintroductions, will be located in the free-flowing reach of the 
Tennessee River between Wilson Dam and the backwaters of Pickwick 
Reservoir, Colbert and Lauderdale Counties, Alabama. The NEP Area is 
totally isolated from existing populations of these species by large 
reservoirs, and none of these mollusks are known to occur in reservoir 
habitat. These reservoirs will act as barriers to the expansion of 
these species upstream or downstream in the main stem of the Tennessee 
River and ensure that these NEPs remain geographically isolated and 
easily distinguishable from existing wild populations.

Management

    We do not believe these reintroductions will conflict with existing 
or proposed human activities or hinder public use of the NEP Area. 
Experimental population special rules contain all the prohibitions and 
exceptions regarding the taking of individual animals. These special 
rules are more compatible with routine human activities in the 
reintroduction area.
    If any of the reintroduced endangered mollusks move beyond the 
current boundaries of this NEP Area, the animals will be presumed to 
have come from the NEP Area. In that case, the rule will be amended and 
the boundaries of the NEP Area will be enlarged to include the entire 
range of the expanded population.

Previous Federal Actions

    On June 18, 1997, we mailed letters to 54 potentially affected 
congressional offices, Federal and State agencies, local governments, 
and interested parties to notify them that we were considering 
proposing NEP status for 17 mollusks. We received six written 
responses. The majority of these comments were very supportive of the 
potential reintroduction efforts, and few concerns were raised.
    On May 27, 1999, we published the proposed rule in the Federal 
Register (64 FR 28779) to designate NEP status, under section 10(j) of 
the Act, for the reintroduction of the aforementioned 16 mussels and 1 
snail into the Tennessee River below Wilson Dam in Alabama. 
Additionally, we announced this proposal in faxes dated May 26, 1999, 
in letters dated May 27, 1999, and in a legal notice published in the 
Times Daily, Florence, Alabama, on June 12, 1999. Those documents 
notified affected congressional offices, the Governor of Alabama, 
Federal and State agencies, local governments, scientific 
organizations, and interested parties of the proposed action, and 
requested comments and information that might contribute to the 
development of a final determination.

Summary of Comments and Recommendations

    In the May 27, 1999, proposed rule (64 FR 28779), we opened a 60-
day public comment period. We received two responses. These comments 
did not result in any changes to the final rule. Key issues raised in 
the comments are presented below.
    Issue 1: Concerns were raised that a project by the Shoal Economic 
Development Authority (SEDA) along the Tennessee River, below the 
Colbert Steam Plant in Colbert County, Alabama, might be impacted by 
the NEP designation.
    Our Response: Because of the regulatory flexibility provided 
through a NEP designation and the fact that the project is downstream 
of the NEP Area, we do not believe the reintroductions will have any 
effect on SEDA's project. The SEDA project, which starts at about RM 
244 (390.4 km), is approximately 2 miles (3.2 km) below the downstream 
extent of the NEP Area (RM 246 [393.6 km]) and 3 to 4 miles (4.8 to 6.4 
km) below the area where the species will be released. Because of 
habitat suitability problems, we do not expect these reintroduced 
species to inhabit the river below RM 246 (393.6 km). However, if they 
did move downstream into Pickwick Reservoir, we would assume that the 
animals came from the existing NEP Area, and we would amend the rule to 
extend the NEP Area boundaries downstream to include the expanded 
population.
    Issue 2: The TVA was generally supportive of the NEP designation 
and offered their assistance in the reintroduction effort. They again 
expressed concerns about the long-term viability of mussels in this 
river reach but stated that their concern had been noted in the 
proposed rule. The TVA is concerned that, although reintroduced 
Cumberlandian mussel species might survive below Wilson Dam, they might 
not be able to reproduce there.
    Our Response: Based on the improved reproductive success of the 
mussel fauna below Wilson Dam, we are optimistic that at least some of 
the Cumberlandian species will reproduce. However, even if these 
species are unable to reproduce, the establishment of nonreproducing 
populations of listed Cumberlandian mussels will assist in the recovery 
effort. Mussels are 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.

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, the final 
rule to designate NEP status for 16 endangered mussels and 1 endangered 
aquatic snail in the free-flowing reach of the Tennessee River below 
Wilson Dam in Colbert and Lauderdale Counties,

[[Page 32256]]

Alabama, is not a significant regulatory action subject to Office of 
Management and Budget review. This rule will not have an annual 
economic effect of $100 million and will not have an adverse effect on 
any economic sector, productivity, jobs, the environment, or other 
units of government. The area affected by this rule consists of a very 
limited and discrete geographic segment (only 12 RM (19 km)) of the 
Tennessee River in northern Alabama. Therefore, a cost-benefit and 
economic analysis is not required.
    Shellfish harvesting in the United States is dominated by small 
firms. Of the 441 firms included in Standard Industrial Code 0913 for 
``establishments primarily engaged in the catching or taking of 
shellfish,'' 421 have fewer than 20 employees, and 353 have fewer than 
5 employees. These figures include saltwater shellfishing (lobsters, 
crabs, clams, etc.), so freshwater mussel harvesting is only a fraction 
of this small industry (Office of Advocacy, U.S. Small Business 
Administration, based on data provided by the Department of Commerce, 
Bureau of the Census).
    A recent die-off of the pearl oyster stock in Japan has almost 
eliminated the market for freshwater mussels this year. In fiscal year 
1998, there were 79 licensed mussel harvesters in the entire State of 
Alabama but almost no sales. In normal years, there may be as many as 
270 mussel harvesters. County level data is not available.
    Because there are no expected impacts or restrictions to existing 
human uses of the Tennessee River as a result of this rule, no 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients are expected to occur.
    This rule will not raise novel legal or policy issues. Since 1984, 
we have promulgated 10(j) rules for many other listed threatened and 
endangered species in various localities. Such rules are designed to 
reduce the regulatory burden that would otherwise exist when 
reintroducing listed species to the wild.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This rule is not expected to have any impact on the use of the river. 
Mussels are harvested from the relevant reach, primarily by diving from 
one- or two-person boats. Harvesters are seeking larger mussels of a 
dozen specific permitted species to be used as seeds in the Japanese 
cultured pearl industry. Several endangered mussels still occur in the 
area, and divers are careful to identify species on site in order to 
avoid carrying extra weight to the surface. The addition of NEP species 
is not expected to complicate this task. Other river activities will 
not be affected.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule will not have 
an annual effect on the economy of $100 million or more for reasons 
outlined above. It will not cause a major increase in costs or prices 
for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. The rule does not have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of U.S.-based enterprises to 
compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    The NEP designation will not place any additional requirements on 
any city, county, or other local municipalities. The ADWFF, which 
manages the aquatic mollusks in the Tennessee River below Wilson Dam, 
requested that we consider this reintroduction. However, they will not 
be required by the Endangered Species Act to specifically manage for 
any reintroduced species. Accordingly, this rule will not 
``significantly or uniquely'' affect small governments. A Small 
Government Agency Plan is not required. Because this rulemaking does 
not require any action be taken by local or State government or private 
entities, we have determined and certify pursuant to the Unfunded 
Mandates Reform Act, 2, U.S.C. 1502 et seq., that this rulemaking will 
not impose a cost of $100 million or more in any given year on local or 
State governments or private entities (i.e., it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act).

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. A takings implication assessment is 
not required because this rule (1) will not effectively compel a 
property owner to suffer a physical invasion of property and (2) will 
not deny all economically beneficial or productive use of the land. 
This rule will substantially advance a legitimate government interest 
(conservation and recovery of listed freshwater mussel and snail 
species) and will not present a bar to all reasonable and expected 
beneficial use of private property. Because of the regulatory 
flexibility provided by NEP designations under section 10(j) of the 
Act, we do not believe the reintroduction of these mollusks would 
conflict with existing or proposed human activities or hinder public 
use of the Tennessee River system.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. This rule will not have substantial 
direct effects on the States in their relationship between the Federal 
government and the States or on the distribution of power and 
responsibilities among the various levels of government. We have 
coordinated extensively with the State of Alabama on the reintroduction 
of freshwater mussels into the Tennessee River. The State wildlife 
agency (ADWFF) requested that we undertake this rulemaking in order to 
assist the State in restoring and recovering its native aquatic fauna. 
Achieving the recovery goals for these 17 species will contribute to 
their eventual delisting and their return to State management. No 
intrusion on State policy or administration is expected, roles or 
responsibilities of Federal or State governments will not change, and 
fiscal capacity will not be substantially directly affected. The 
special rule operates to maintain the existing relationship between the 
States and the Federal government and is being undertaken at the 
request of a State agency. Therefore, this rule does not have 
significant Federalism effects or implications to warrant the 
preparation of a Federalism Assessment pursuant to the provisions of 
Executive Order 13132.

Paperwork Reduction Act

    This rule contains no information collection. An agency may not 
conduct or sponsor, and a person is not required to respond to a 
collection of information unless it displays a current valid OMB 
control number.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and does meet the requirements of sections 3(a) and 
3(b)(2) of the Order.

National Environmental Policy Act

    We have determined that the issuance of this rule is categorically 
excluded under our National Environmental

[[Page 32257]]

Policy Act procedures (516 DM 6, Appendix 1.4 B(6)).

References Cited

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

Author

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the U.S. Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.


    2. Amend Sec. 17.11(h), by revising the existing entries for 
``Bean, Cumberland (pearlymussel)''; ``Blossom, tubercled 
(pearlymussel)''; ``Blossom, turgid (pearlymussel)''; ``Blossom, yellow 
(pearlymussel)''; ``Catspaw (=purple cat's paw pearlymussel)''; 
``Clubshell''; ``Combshell, Cumberlandian''; ``Lampmussel, Alabama''; 
``Mapleleaf winged (mussel)''; ``Monkeyface, Cumberland 
(pearlymussel)''; ``Mussel, oyster''; ``Pearlymussel, birdwing''; 
``Pearlymussel, cracking''; ``Pearlymussel, dromedary''; ``Pigtoe, 
fine-rayed''; and, ``Pigtoe, shiny'' under CLAMS and for ``Riversnail, 
Anthony's'' under ``SNAILS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                 Vertebrate
------------------------------------------------------                      population where                                 Critical
                                                         Historic range       endangered or        Status     When listed    habitat      Special rules
           Common name              Scientific name                            threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
              Clams
 
                   *                  *                  *                  *                  *                  *                  *
Bean, Cumberland (pearlymussel).  Villosa (=           U.S.A. (AL, KY,     NA................  E                       15           NA  NA
                                   Micromya) trabalis.  TN, VA).

[[Page 32258]]

 
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
Blossom, tuberoled                Epioblasma           U.S.A. (AL, IL,     NA................  E                       15           NA  NA
 (pearlmyussel).                   (=Dysnomia)          IN, KY, TN, WV).
                                   torulosa torulosa.
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            see 17.85(a)).
Blossom, turgid (pearlymussel)..  Epioblasma           U.S.A. (AL, TN)...  NA................  E                       15           NA  NA
                                   (=Dysnomia)
                                   turgidula.
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            see 17.85(a)).
Blossom, yellow (pearlymussel)..  Epioblasma           U.S.A. (AL, TN)...  NA................  E                       15           NA  NA
                                   (=Dysnomia)
                                   florentina
                                   florentina.

[[Page 32259]]

 
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            see 17.85(a)).
Catspaw, (=purple cat's paw       Epioblasma           U.S.A. (AL, IL,     NA................  E                      394           NA  NA
 pearlymussel).                    (=Dysnomia)          IN, KY, OH, TN).
                                   (=sulcata sulcata).
    Do..........................  ......do...........  ......do..........   U.S.A. (AL--The    XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            see 17.85(a)).
 
                       *                *                 *                 *                *                 *                 *
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             ...........           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 the lower 5
                                                                            RM [8 km] 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.           MS, TN, VA).

[[Page 32260]]

 
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            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--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
Mapleleaf, winged (mussel)......  Quadrula fragosa...  U.S.A. (AL, IA,     NA................  E                      426           NA  NA
                                                        IL, IN, KY, MN,
                                                        MO, NE, OH, OK,
                                                        TN, WI).
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
Monkeyface, Cumberland            Quadrula intermedia  U.S.A. (AL, TN,     NA................  E                       15           NA  NA
 (pearlymussel).                                        VA).

[[Page 32261]]

 
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            see 17.85(a)).
 
                   *                  *                  *                  *                  *                  *                  *
Mussel, oyster..................  Epioblasma           U.S.A. (AL, GA,     NA................  E                      602           NA  NA
                                   capsaeformis.        KY, NC, TN, VA).
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            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--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            see 17.85(a)).
Pearlymussel, cracking..........  Hemistena            U.S.A. (AL, IL,     NA................  E                      366           NA  NA
                                   (=Lastena) lata.     IN, KY, OH, TN,
                                                        VA).

[[Page 32262]]

 
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            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--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            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--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            see 17.85(a)).
 
                       *                *                 *                 *                *                 *                 *
Pigtoe, shiny...................  Fusconaia cor        U.S.A. (AL, TN,     NA................  E                       15           NA  NA
                                   (=edgariana).        VA).

[[Page 32263]]

 
    Do..........................  ......do...........  ......do..........  U.S.A. (AL--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            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--The     XN             ...........           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 the lower 5
                                                                            RM [8 km] of all
                                                                            tributaries to
                                                                            this reach in
                                                                            Colbert and
                                                                            Lauderdale Cos.,
                                                                            see 17.85(a)).
 
                       *                *                 *                 *                *                 *                 *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Add Sec. 17.85 to read as follows:


Sec. 17.85  Special rules--invertebrates.

    (a) Cumberland bean (pearlymussel) (Villosa trabalis), tubercled 
blossom (pearlymussel) (Epioblasma torulosa torulosa), turgid blossom 
(pearlymussel) (Epioblasma turgidula), yellow blossom (pearlymussel) 
(Epioblasma florentina florentina), catspaw (purple cat's paw 
pearlymussel) (Epioblasma obliquata obliquata), clubshell (Pleurobema 
clava), Cumberlandian combshell (Epioblasma brevidens), Alabama 
lampmussel (Lampsilis virescens), winged mapleleaf (mussel) (Quadrula 
fragosa), Cumberland monkeyface (pearlymussel) (Quadrula intermedia), 
oyster mussel (Epioblasma capsaeformis), birdwing pearlymussel 
(Conradilla caelata), cracking pearlymussel (Hemistena lata), dromedary 
pearlymussel (Dromus dromas), fine-rayed pigtoe (Fusconaia cuneolus), 
shiny pigtoe (Fusconaia cor), Anthony's riversnail (Athearnia 
anthonyi).
    (1) Where are these mollusks designated as nonessential 
experimental populations (NEPs)?
    (i) The NEP Area for these 17 mollusks is within the species' 
historic ranges, and is defined as follows: The free-flowing reach of 
the Tennessee River from the base of Wilson Dam downstream to the 
backwaters of Pickwick Reservoir (river mile (RM) 259.4 [414.0 km] to 
RM 246.0 [393.6 km] and includes the lower 5 RM (8 km) of all 
tributaries to this reach in Colbert and Lauderdale Counties, Alabama.
    (ii) None of the identified species are known to exist in any of 
the tributaries to the free-flowing reach of the Tennessee River below 
Wilson Dam or from below the backwaters of Pickwick Reservoir, Colbert 
and Lauderdale Counties, Alabama. In the future, if any of the 17 
mollusks are found upstream of the lower 5 RM (8 km) of these 
tributaries or downstream into Pickwick Reservoir, we will presume the 
animals came from the reintroduced NEP, and we will amend this rule and 
enlarge the boundaries of the NEP Area to include the entire range of 
the expanded population.
    (iii) We do not intend to change the NEP designations to 
``essential experimental,'' ``threatened,'' or ``endangered'' within 
the NEP Area. Additionally, we will not designate critical habitat for 
these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).
    (2) What activities are not allowed in the NEP Area?
    (i) Except as expressly allowed in this rule, all the prohibitions 
of 17.31(a) and (b) apply to the mollusks identified in this special 
rule.
    (ii) Any manner of take not described under paragraph (a)(3) of 
this section will not be allowed in the NEP Area. We may refer the 
unauthorized take of these species to the appropriate authorities for 
prosecution.

[[Page 32264]]

    (iii) You may not possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever any of the identified 17 
mollusks, or parts thereof, that are taken or possessed in violation of 
these regulations or in violation of the applicable State fish and 
wildlife laws or regulations or the Act.
    (iv) You may not attempt to commit, solicit another to commit, or 
cause to be committed any offense defined in this paragraph (a).
    (3) What take is allowed in the NEP Area?
    (i) Take of these species that is accidental and incidental to an 
otherwise lawful activity such as fishing, boating, commercial 
navigation, trapping, wading, or mussel harvesting, is allowed.
    (ii) Any individual collecting or harvesting mussels must check 
their collection prior to leaving the immediate area and return any NEP 
mussels to the site where they were obtained.
    (4) How will the effectiveness of these reintroductions be 
monitored?
    We will prepare periodic progress reports and fully evaluate these 
reintroduction efforts after 5 and 10 years to determine whether to 
continue or terminate the reintroduction efforts.

    Dated: May 31, 2001.
Marshall P. Jones, Jr.
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-14878 Filed 6-13-01; 8:45 am]
BILLING CODE 4310-55-P