[Federal Register Volume 67, Number 155 (Monday, August 12, 2002)]
[Rules and Regulations]
[Pages 52420-52428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20341]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF96


Endangered and Threatened Wildlife and Plants; Establishment of 
Nonessential Experimental Population Status and Reintroduction of Four 
Fishes in the Tellico River

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), plan to 
reintroduce two federally listed endangered fishes--the duskytail 
darter (Etheostoma percnurum) and smoky madtom (Noturus baileyi)--and 
two federally listed threatened fishes--the yellowfin madtom (Noturus 
flavipinnis) and spotfin chub (=turquoise shiner) (Cyprinella 
(=Hybopsis) monacha)--into the Tellico River, between the backwaters of 
the Tellico Reservoir (approximately Tellico River mile (TRM) 19 (30.4 
kilometers (km))) and TRM 33 (52.8 km), near the Tellico Ranger 
Station, Monroe County, Tennessee.
    These reestablished populations will be classified as nonessential 
experimental populations (NEPs) in accordance with section 10(j) of the 
Endangered Species Act of 1973, as amended (Act). Based on an 
evaluation by species experts, none of these species are currently 
known to exist in this river reach or its tributaries.

[[Page 52421]]

    These reintroductions are recovery actions and are part of a series 
of reintroductions and other recovery actions that the Service, Federal 
and State agencies, and other partners are considering and conducting 
throughout the species' historic ranges. This rule provides a plan for 
establishing the NEPs and provides for limited allowable legal taking 
of the aforementioned fishes within the defined NEP area.

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

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

FOR FURTHER INFORMATION CONTACT: Mr. Bob Butler at 828/258-3939, Ext. 
235; facsimile 828/258-5330; or e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

    1. Legislative: Congress made significant changes to the Act with 
the addition of section 10(j), which provides for the designation of 
specific reintroduced populations of listed species as ``experimental 
populations.'' Previously, we had authority to reintroduce populations 
into unoccupied portions of a listed species' historical range when 
doing so would foster the conservation and recovery of the species. 
However, local citizens often opposed these reintroductions because 
they were concerned about the placement of restrictions and 
prohibitions on Federal and private activities. Under section 10(j), 
the Secretary of the Department of the Interior can designate 
reintroduced populations established outside the species' current 
range, but within its historical range, as ``experimental.''
    Under the Act, species listed as endangered or threatened are 
afforded protection primarily through the prohibitions of section 9 and 
the requirements of section 7. Section 9 of the Act prohibits the take 
of endangered wildlife. ``Take'' is defined by the Act as harass, harm, 
pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to 
engage in any such conduct. Service regulations (50 CFR 17.31) 
generally extend the prohibition of take to threatened wildlife. 
Section 7 of the Act outlines the procedures for Federal interagency 
cooperation to conserve federally listed species and protect designated 
critical habitats. It mandates all Federal agencies to determine how to 
use their existing authorities to further the purposes of the Act to 
aid in recovering listed species. It also states that Federal agencies 
will, in consultation with the Service, ensure that any action they 
authorize, fund, or carry out is not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Section 7 of the Act does 
not affect activities undertaken on private land unless they are 
authorized, funded, or carried out by a Federal agency.
    Section 10(j) is designed to increase our flexibility in managing 
an experimental population by allowing us to treat the population as 
threatened, regardless of the species' designation elsewhere in its 
range. Threatened designation gives us more discretion in developing 
and implementing management programs and special regulations for such a 
population and allows us to develop any regulations we consider 
necessary to provide for the conservation of a threatened species. In 
situations where we have experimental populations, most of the section 
9 prohibitions that normally apply to threatened species no longer 
apply, and the special rule contains the prohibitions and exceptions 
necessary and appropriate to conserve that species. Regulations for 
NEPs may be developed to be more compatible with routine human 
activities in the reintroduction area.
    Based on the best available information, we must determine whether 
experimental populations are ``essential'' or ``nonessential'' to the 
continued existence of the species. An experimental population that is 
essential to the survival of the species is treated as a threatened 
species. An experimental population that is nonessential to the 
survival of the species is also treated as a threatened species. 
However, for section 7 interagency cooperation purposes, if the NEP is 
located outside of a National Wildlife Refuge or National Park, it is 
treated as a species proposed for listing.
    For the purposes of section 7 of the Act, in situations where there 
is an NEP located within a National Wildlife Refuge or National Park 
(treated as threatened), section 7(a)(1) and the consultation 
requirements of section 7(a)(2) of the Act would apply. Section 7(a)(1) 
requires all Federal agencies to use their authorities to conserve 
listed species. Section 7(a)(2) requires that Federal agencies consult 
with the Service before authorizing, funding, or carrying out any 
activity that would likely jeopardize the continued existence of a 
listed species or adversely modify its critical habitat. When NEPs are 
located outside a National Wildlife Refuge or National Park, only two 
provisions of section 7 apply--section 7(a)(1) and section 7(a)(4). In 
these instances, NEPs provide additional flexibility because Federal 
agencies are not required to consult with us under section 7(a)(2). 
Section 7(a)(4) requires Federal agencies to confer with the Service on 
actions that are likely to jeopardize the continued existence of a 
proposed species. However, since we determined that the experimental 
population is not essential to the continued existence of the species, 
it is very unlikely that we would ever determine jeopardy for a project 
impacting a species within an NEP outside a National Wildlife Refuge or 
National Park.
    Individuals used to establish an experimental population may come 
from a donor population, provided their removal will not create adverse 
impacts upon the parent population and provided appropriate permits are 
issued in accordance with our regulations (50 CFR 17.22) prior to their 
removal.
    2. Biological: Since the mid-1980s, Conservation Fisheries, Inc. 
(CFI), with support from us, the Tennessee Wildlife Resources Agency 
(TWRA), U.S. Forest Service (USFS), National Park Service (NPS), 
Tennessee Valley Authority (TVA), and Tennessee Aquarium (TA), has 
reintroduced the smoky madtom, duskytail darter, yellowfin madtom, and 
spotfin chub into Abrams Creek, within the Great Smoky Mountains 
National Park, Blount County, Tennessee. We have evidence that all four 
species are becoming reestablished in Abrams Creek (Rakes et al. 1998). 
Based on this success and CFI's intimate knowledge of the fishes' 
habitat needs, we contracted them to survey the Tellico River to 
determine if we could expand the recovery program for these fishes into 
the Tellico River.
    CFI determined that the Tellico River appears to contain ideal 
habitat for the reintroduction of the four fishes, between the 
backwaters of the Tellico Reservoir (approximately TRM 19 (30.4 km)) 
and TRM 33 (52.8 km), near the Tellico Ranger Station, Monroe County, 
Tennessee (Rakes and Shute 1998). CFI concluded that the Tellico 
River's overall water quality and clarity, combined with substrate 
quality, were somewhat less optimal than Citico Creek, where three of 
the four species currently exist. However, they also concluded that the 
Tellico River contains as good or better habitat than that which exists 
in Abrams Creek, where reintroductions of all four species are 
apparently succeeding.

[[Page 52422]]

    Rakes and Shute (1998) reported that there are no confirmed 
historical collection records for these fishes from the Tellico River. 
However, they believe that all four species probably occurred in the 
river historically. They based their conclusion on two facts: (1) That 
the Tellico River is a Little Tennessee tributary just downstream from 
the mouths of Abrams and Citico Creeks (all four fishes historically 
occurred in these creeks) and (2) that all three streams drain the same 
physiographic provinces (Blue Ridge and Ridge and Valley). 
Additionally, all four species historically had access to the Tellico 
River. Prior to the construction of reservoirs on the main stem of the 
Little Tennessee River, no physical barriers prevented the movement of 
these fishes among Abrams Creek, Citico Creek, and the Tellico River 
(Peggy Shute, TVA, personal communication, 1998).
    3. Recovery Efforts: We listed the duskytail darter (Etheostoma 
percnurum) (Jenkins 1994) as an endangered species on April 27, 1993 
(58 FR 25758), and completed the recovery plan for this species in 
March 1994 (Service 1994). Although likely once more widespread in the 
upper Tennessee and middle Cumberland River systems, the species was 
historically known from only six populations--Little River and Abrams 
Creek, Blount County, Tennessee; Citico Creek, Monroe County, 
Tennessee; Big South Fork Cumberland River, Scott County, Tennessee, 
and McCreary County, Kentucky; Copper Creek and the Clinch River (this 
is one population), Scott County, Virginia; and the South Fork Holston 
River, Sullivan County, Virginia (Service 1994). The South Fork Holston 
River population is apparently extirpated. The Little River, Copper 
Creek/Clinch River, and Big South Fork Cumberland River populations are 
extant but small. CFI has reintroduced the duskytail darter into Abrams 
Creek, where a population is apparently becoming reestablished (Rakes 
et al. 1998).
    The downlisting (reclassification from endangered to threatened 
status) criteria in the Duskytail Darter Recovery Plan are: (1) Protect 
and enhance existing populations and reestablish a population so that 
at least three distinct viable duskytail darter populations exist, (2) 
complete studies of the species' biological and ecological 
requirements, (3) develop management strategies from these studies that 
are or are likely to be successful, and (4) ensure that no foreseeable 
threats exist that would likely threaten the continued existence of the 
three aforementioned viable populations. The delisting criteria in the 
recovery plan are: (1) Protect and enhance existing populations and 
reestablish populations so that at least five distinct viable duskytail 
darter populations exist, (2) complete studies of the species' 
biological and ecological requirements, (3) develop management 
strategies from these studies that are or are likely to be successful, 
and (4) ensure that no foreseeable threats exist that would likely 
threaten the continued existence of the five aforementioned viable 
populations.
    We listed the smoky madtom (Noturus baileyi) (Taylor 1969) as an 
endangered species on October 26, 1984 (49 FR 43065), and finalized the 
recovery plan for this species in August 1985 (Service 1985). Although 
once probably more widespread in tributaries to the lower Little 
Tennessee River system, this species was historically collected from 
only two creeks--Abrams Creek, Blount County, Tennessee, and Citico 
Creek, Monroe County, Tennessee (Service 1985). The Citico Creek 
population is still extant. CFI has reintroduced the smoky madtom into 
Abrams Creek, and a population is apparently becoming reestablished 
(Rakes et al. 1998).
    The downlisting criteria in the Smoky Madtom Recovery Plan are: (1) 
Protect the existing Citico Creek population and reintroduce the 
species into Abrams Creek so that at least two distinct viable smoky 
madtom populations exist, and (2) eliminate threats to the species by 
implementing management activities. The delisting criteria in the 
recovery plan are: (1) Protect and enhance existing populations and 
reestablish populations so that at least four distinct viable smoky 
madtom populations (Abrams and Citico Creeks, plus two others) exist; 
(2) implement successful management plans for the populations in Abrams 
and Citico Creeks; and (3) protect all four populations and their 
habitat from present and foreseeable threats that could interfere with 
the survival of any of the populations.
    We listed the yellowfin madtom (Noturus flavipinnis) (Taylor 1969) 
as a threatened species on September 9, 1977 (42 FR 45527), and 
finalized the recovery plan for this species in June 1983 (Service 
1983a). This fish was probably once widely distributed in the Tennessee 
drainage, from the Chickamauga system upstream (Service 1983a). 
However, the yellowfin madtom was historically known from only six 
streams--South Chickamauga Creek, Catoosa County, Georgia; Hines Creek, 
a Clinch River tributary, Anderson County, Tennessee; North Fork 
Holston River, Smyth County, Virginia; Copper Creek, Scott and Russell 
Counties, Virginia; Powell River, Hancock County, Tennessee; and Citico 
Creek, Monroe County, Tennessee (Service 1983a). Although there are no 
historical yellowfin madtom records from Abrams Creek, Blount County, 
Tennessee, Lennon and Parker (1959) reported that the brindled madtom 
(the name given by early collectors for the yellowfin) was collected 
during a reclamation project of lower Abrams Creek in 1957. Based on 
this observation, Dinkins and Shute (1996) and others believe the 
species once occurred in the middle and lower reaches of Abrams Creek. 
Three small populations still persist--Citico Creek, Copper Creek, and 
the Powell River. CFI has reintroduced the species into Abrams Creek, 
and a population is apparently becoming reestablished (Rakes et al. 
1998).
    The delisting criteria in the Yellowfin Madtom Recovery Plan are: 
(1) Protect and enhance existing populations and/or reestablish 
populations so that viable populations exist in Copper Creek, Citico 
Creek, and the Powell River; (2) recreate and/or discover two 
additional viable populations; (3) ensure that noticeable improvements 
in coal-related problems and substrate quality exist in the Powell 
River; and (4) protect the species and its habitat in all five rivers 
from present and foreseeable threats that may adversely affect 
essential habitat or the survival of any of the populations.
    We listed the spotfin chub (=turquoise shiner) (Cyprinella 
(=Hybopsis) monacha) (Cope 1868) as a threatened species on September 
9, 1977 (42 FR 45527), and finalized the recovery plan for this species 
in November 1983 (Service 1983b). This once widespread species was 
historically known from 24 streams in the upper and middle Tennessee 
River system. It is now extant in only four rivers/river systems--the 
Buffalo River at the mouth of Grinders Creek, Lewis County, Tennessee; 
Little Tennessee River, Swain and Macon Counties, North Carolina; Emory 
River system (Obed River, Clear Creek, and Daddys Creek) Cumberland and 
Morgan Counties, Tennessee; Holston River and its tributary, the North 
Fork Holston River, Hawkins and Sullivan Counties, Tennessee, and Scott 
and Washington Counties, Virginia (Service 1983b; P. Shute, TVA, 
personal communication, 1998). CFI has reintroduced the species into 
Abrams Creek, and indications are that it may become reestablished 
(Rakes et al. 1998).
    The delisting criteria in the Spotfin Chub Recovery Plan are: (1) 
protect and enhance existing populations and/or reestablish populations 
so that viable populations exist in the Buffalo River

[[Page 52423]]

system, upper Little Tennessee River, Emory River system, and lower 
North Fork Holston River and (2) ensure, through reintroductions and/or 
the discovery of new populations, that two other viable populations 
exist.
    The recovery criteria for all four of these fishes generally agree 
that, to reach recovery, we must: (1) Restore existing populations to 
viable levels, (2) reestablish viable populations in historical 
habitats, and (3) eliminate foreseeable threats that would likely 
threaten the continued existence of any viable populations. The number 
of secure, viable populations (existing and restored) needed to achieve 
recovery varies by species and depends on the extent of the species' 
probable historical range (i.e., species that were once widespread 
require a greater number of populations for recovery than species that 
were historically more restricted in distribution). However, the 
reestablishment of historical populations is a critical component to 
the recovery of all four species.
    4. Reintroduction Site: In March 1998, the Executive Director of 
the TWRA stated that he supports the conclusions of Rakes and Shute 
(1998) and requested that we consider designating the Tellico River an 
NEP area for reintroducing the four fishes. He further stated that: (1) 
The Tellico River was the probable historical habitat of the duskytail 
darter, smoky madtom, yellowfin madtom, and spotfin chub, and (2) the 
Tellico River appeared to have almost ideal habitat for the 
reintroduction of all four fishes.
    Dr. David Etnier, Department of Ecology and Evolutionary Biology, 
University of Tennessee, Knoxville, Tennessee, stated in April 1998 
that he supports the reintroduction of the four species into the 
Tellico River. Dr. Etnier presented several reasons for his support: 
(1) The mouth of the Tellico River is approximately 10 miles (16 km) 
downstream of the mouth of Citico Creek, which historically supported 
all four species and currently supports all but the spotfin chub; (2) 
CFI's habitat analysis indicated that the reintroduction of these 
fishes into the Tellico River has a greater potential for success than 
reintroductions into any other tributary of the Little Tennessee River 
system, except Abrams Creek, where apparently successful 
reintroductions are already occurring; (3) apparently, no fish 
collections were made from the Tellico River prior to the 1960s, so the 
extirpation of these fishes could have occurred prior to the 1960s due 
to siltation caused by heavy logging in the watershed around the turn 
of the century; and (4) none of these species display any biological 
attributes that suggest they could become a problem if successfully 
established into the Tellico River.
    We will reintroduce populations of the duskytail darter, smoky 
madtom, yellowfin madtom, and spotfin chub (=turquoise shiner) into the 
Tellico River, between the backwaters of the Tellico Reservoir 
(approximately TRM 19 (30.4 km)) and TRM 33 (52.8 km), near the Tellico 
Ranger Station, Monroe County, Tennessee, and designate these 
populations as NEPs. This area is identified as the NEP area.
    5. Reintroduction Procedures: At this time we cannot determine the 
dates for these reintroductions, the specific sites where the fish 
species will be released, and the actual number of individuals to be 
released. We will release primarily artificially propagated juveniles, 
but we could release some wild adult stock. Propagation and juvenile 
rearing technology is available for the spotfin chub and the duskytail 
darter. Limited numbers of smoky and yellowfin madtom juveniles can be 
reared using eggs and larvae taken from the wild. However, madtom 
artificial propagation technology, which is needed to produce large 
numbers of juvenile madtoms, is still in development.
    The parents of the juveniles reintroduced into the NEP area will 
come from existing wild populations. The two madtoms and duskytail 
darters will come from a nearby Little Tennessee River tributary--
Citico Creek, Monroe County, Tennessee. The spotfin chubs will come 
from upstream in the Little Tennessee River, Swain County, North 
Carolina. In some cases, the parents will be returned to the wild 
population from which they were taken. However, in most cases the 
parents will be permanently relocated to propagation facilities.

Status of Reintroduced Populations

    The status of the extant populations of the duskytail darter, smoky 
madtom, yellowfin madtom, and spotfin chub is such that individuals can 
be removed to provide a donor source for reintroduction without 
appreciably reducing the likelihood of the species' survival in the 
wild. Therefore, we have determined that these reintroduced fish 
populations are not essential to the continued existence of the 
species. We will ensure, through our section 10 permitting authority 
and the section 7 consultation process, that the use of animals from 
any donor population for these reintroductions is not likely to 
jeopardize the continued existence of the species.
    In addition, the anticipated success of these reintroductions will 
enhance the conservation and recovery potential of these species by 
extending their present ranges into currently unoccupied historic 
habitat. These species are not known to exist in the Tellico River or 
its tributaries at the present time.

Location of Reintroduced Populations

    Sites for the reintroduction of these four fish species into the 
Tellico River, Monroe County, Tennessee, will be within the designated 
NEP area. This area is totally isolated from existing populations of 
these species by large reservoirs, and none of these fishes are known 
to occur or move through large reservoir habitat. Therefore, these 
reservoirs will act as barriers to the downstream expansion of these 
species into the main stem of the Little Tennessee River and its 
tributaries and ensure that these populations will remain 
geographically isolated.

Management

    We do not believe these reintroductions will conflict with existing 
or proposed human activities or hinder public utilization of the NEP 
area. Special rules for experimental populations contain all the 
prohibitions and exceptions regarding the taking of individual animals. 
These special rules are more compatible with routine human activities 
in the reintroduction area.
    Based on the habitat requirements of these four fishes, we do not 
expect them to become established outside the NEP area. However, if any 
of the four species move upstream or downstream or into tributaries 
outside the designated NEP area, we would presume that the animals had 
come from the reintroduced populations. The rule would then be amended, 
and the boundaries of the NEP area would be enlarged to include the 
entire range of the expanded population.

Previous Federal Actions

    On June 26, 1998, we mailed letters to 67 potentially affected 
congressional offices, Federal and State agencies, local government 
offices, and interested parties that we were considering proposing NEP 
status for four fish species in the Tellico River. We received four 
written responses.
    The USFS, which is significantly involved in reintroduction efforts 
for these fishes into Abrams Creek, supported the proposed 
reintroductions into the Tellico River as NEPs and offered to cooperate 
with us and TWRA in the reintroductions.
    The Tennessee Department of Environment and Conservation, Division 
of Natural Heritage (TDEC),

[[Page 52424]]

supported the proposed reintroduction of the four fishes into the 
Tellico River. They believed that designating the reintroduced 
populations as NEPs is appropriate because it should enable Federal, 
State, and local authorities to continue to promote the conservation 
and recovery of these fishes.
    The Tennessee Chapter of the American Fisheries Society supported 
the proposed reintroduction of these fishes into the Tellico River 
under NEP status. They concluded that: (1) Although there is little 
information on the historical environmental conditions in the Tellico 
River, the river now supports a relatively healthy native fish 
community with respect to species diversity, species composition, fish 
abundance, and fish health; (2) the river appears to contain suitable 
habitat for the survival of all four species; (3) all four species 
probably historically occupied the river; and (4) designating 
reintroductions as NEPs greatly relaxes regulatory requirements and 
makes introduced populations more compatible with other resource use in 
the watershed.
    The Southeast Aquatic Research Institute (SARI) fully supported the 
proposed reintroductions.
    On June 8, 2001, we published the proposed rule in the Federal 
Register (66 FR 30853) to designate NEP status, under section 10(j) of 
the Act, for the reintroduction of the aforementioned four fishes into 
the Tellico River, Monroe County, Tennessee. Additionally, we announced 
this proposal in facsimiles dated June 7, 2001; in letters dated June 
8, 2001; and in a legal notice published in the Knoxville News-
Sentinel, Knoxville, Tennessee, on June 21, 2001. Those documents 
notified affected congressional offices, the Governor of Tennessee, 
Federal and State agencies, local government offices, scientific 
organizations, and interested parties of the proposed action and 
requested comments and information that might contribute to the 
development of a final determination.

Summary of Comments and Recommendations

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

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

H.R. Conf. Rep. No. 835, supra at 34 [emphasis added]. An ``essential'' 
population will be a special case, not the general rule.
    The status of the extant populations of the duskytail darter, smoky 
madtom, yellowfin madtom, and spotfin chub is such that individuals can 
be removed to provide a donor source for reintroduction without 
appreciably reducing the likelihood of the species' survival in the 
wild. Therefore, we have determined that these reintroduced fish 
populations are not essential to the continued existence of the 
species. We will ensure, through our section 10 permitting authority 
and the section 7 consultation process, that the use of animals from 
any donor population for these reintroductions is not likely to 
jeopardize the continued existence of the species.
    Issue 3: Four respondents (TVA, TWRA, TDEC, and SARI) expressed 
support for the designation of the experimental population as 
``nonessential'' because it provides greater management flexibility.
    Response: We agree that an NEP designation provides more management 
flexibility than an essential experimental population designation. We 
also believe that the NEP designation is appropriate for the reasons 
discussed in our response to Issue 2 above.

Peer Review

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

Required Determinations

Regulatory Planning and Review

    This rule is not a significant rule as determined by the Office of 
Management and Budget (OMB) under Executive Order 12866. This rule will 
not have an effect of $100 million or more on the economy. It will not 
adversely affect in a material way the economy, productivity, 
competition,

[[Page 52425]]

jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities. The area affected by this rule 
consists of a very limited and discrete geographic segment (only 14 
river miles [22.4 km]) of the Tellico River in Monroe County, 
Tennessee. No significant impacts to existing human activities are 
expected as a result of this rule.
    This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. 
Designating reintroduced populations of federally listed species as 
NEPs significantly reduces the Act's regulatory requirements regarding 
the reintroduced listed species. Because of the substantial regulatory 
relief, we do not believe the reintroduction of these fishes will 
conflict with existing or proposed human activities or hinder public 
use of the Tellico River.
    This rule does not alter the budgetary effects of entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. No entitlements, grants, user fees, or loan programs 
are associated with this rule.
    This rule does not raise novel legal or policy issues. We have 
previously promulgated section 10(j) rules for experimental populations 
of other listed threatened or endangered species in various localities 
since 1984. The rules are designed to reduce the regulatory burden that 
would otherwise exist when reintroducing listed species to the wild.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Although most, if not all, of the identified businesses engaged in 
activities along the affected stream reaches are small businesses, this 
rule will have no economic effect in that it will operate to reduce or 
remove regulatory restrictions (see above for discussion of expected 
impacts).

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule does not have 
an annual effect on the economy of $100 million or more on local or 
State governments or private entities. This rule will not cause a major 
increase in costs or prices for consumers, individual industries, 
Federal, State, or local government agencies, or geographic regions. 
This rule does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. The 
intent of this special rule is to facilitate and continue the existing 
commercial activities along the affected stream reaches, while 
providing for the conservation of species through reintroduction into 
suitable habitat.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector. The TWRA, which 
manages the fishes in the Tellico River, requested that we consider 
this reintroduction under an NEP designation. However, this rule will 
not require the TWRA to specifically manage for any of these 
reintroduced species. A statement containing the information required 
by the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) is not 
required.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. When reintroduced populations of 
federally listed species are designated as NEPs, the Act's regulatory 
requirements regarding the reintroduced listed species within the NEP 
are significantly reduced. Section 10(j) of the Act can provide 
regulatory relief with regard to the taking of reintroduced species 
within an NEP area. For example, this rule allows for the taking of 
these reintroduced fishes when such take is incidental to an otherwise 
legal activity, such as recreation (e.g., fishing, boating, wading, 
trapping, swimming), forestry, agriculture, and other activities that 
are in accordance with Federal, State, and local laws and regulations. 
Because of the substantial regulatory relief provided by NEP 
designations, we do not believe the reintroduction of these fishes will 
conflict with existing or proposed human activities or hinder public 
use of the Tellico River system. A takings implication assessment is 
not required.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, this rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. This rule will not have substantial direct 
effects on the States, in the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. We have 
coordinated extensively with the State of Tennessee regarding the 
reintroduction of these fishes into the Tellico River. We are 
undertaking this rulemaking at the request of the State wildlife agency 
(TWRA) in order to assist the State in restoring and recovering its 
native aquatic fauna. Achieving the recovery goals for these four fish 
species will contribute to the eventual delisting of these species and, 
thus, the return of these species to State management. We do not expect 
any intrusion on State policy or administration; the roles or 
responsibilities of Federal or State governments will not change; and 
fiscal capacity will not be substantially directly affected. This 
special rule operates to maintain the existing relationship between the 
States and the Federal Government and is being undertaken at the 
request of a State agency. We have endeavored to cooperate with the 
TWRA in the preparation of this final rule.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Department of the 
Interior has determined that this rule does not unduly burden the 
judicial system and meets the applicable standards provided in sections 
(3)(a) and (3)(b)(2) of the order.

Paperwork Reduction Act

    This rule does not require an information collection from ten or 
more parties, and a submission under the Paperwork Reduction Act is not 
required. An agency may not conduct or sponsor, and a person is not 
required to respond to a collection of information unless it displays a 
currently valid OMB Control Number.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act (NEPA) is not required. We 
have determined that the issuance of a final rule for these NEPs is 
categorically excluded under our NEPA procedures (516 DM 6, Appendix 
1.4 B (6)).

Government-to-Government Relationship With Tribes

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

[[Page 52426]]

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

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

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

Literature Cited

Dinkins, G. R., and P. W. Shute. 1996. Life history of Noturus baileyi 
and N. flavipinnis (Pisces: Ictaluridae), two rare madtom catfishes in 
Citico Creek, Monroe County, Tennessee. Bull. Alabama. Mus. Nat. His. 
18:43-69.
Lennon, R. E., and P. S. Parker. 1959. The reclamation of Indian and 
Abrams Creeks, Great Smoky Mountains National Park. U.S. Fish and 
Wildlife Service Scientific Report 306. 22 pp.
Rakes, P. L., and J. R. Shute. 1998. Results of an assay of portions of 
the Tellico and Hiwassee Rivers for suitable habitat to support 
reintroductions of rare fish. January 23, 1998, unpublished report 
prepared by Conservation Fisheries, Inc., Knoxville, Tennessee, for 
U.S. Fish and Wildlife Service, Asheville, North Carolina. 14 pp.
Rakes, P. L., P. W. Shute, and J. R. Shute. 1998. Captive propagation 
and population monitoring of rare Southeastern fishes. Final Report for 
1997. Field Season and Second Quarter Report for Fiscal Year 1998, 
prepared for Tennessee Wildlife Resources Agency, Contract No. FA-4-
10792-5-00. 32 pp.
U.S. Fish and Wildlife Service. 1983a. Yellowfin Madtom Recovery Plan. 
Atlanta, GA. 33 pp.
--1983b. Spotfin Chub Recovery Plan. Atlanta, GA. 46 pp.
--1985. Smoky Madtom Recovery Plan. Atlanta, GA. 28 pp.
--1994. Duskytail Darter Recovery Plan. Atlanta, GA. 25 pp.

Author

    The principal author of this final rule is Richard G. Biggins. 
Please contact Bob Butler (see ADDRESSES section) for further 
information.

List of Subjects in 50 CFR Part 17

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

Final Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations as follows:

PART 17--[AMENDED]

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

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


    2. In Sec. 17.11(h), revise entries in the table under FISHES for 
``Chub, spotfin''; ``Darter, duskytail''; ``Madtom, smoky''; and 
``Madtom, yellowfin'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
              Fishes
 
                   *                  *                  *                  *                  *                  *                  *
Chub, spotfin (=turquoise shiner)  Cyprinella(=Hybopsis  U.S.A. (AL, GA, NC,  Entire, except       T                   28, 732     17.95(e)     17.44(c)
                                    monacha).             TN, VA).             where listed as an
                                                                               experimental
                                                                               population.
    Do ......do..................  do ......do.........  do ......do........  Tellico River, from  XN                      732           NA     17.84(m)
                                                                               the backwaters of
                                                                               the Tellico
                                                                               Reservoir (about
                                                                               Tellico River mile
                                                                               19 [30.4 km])
                                                                               upstream to
                                                                               Tellico River mile
                                                                               33 (52.8 km), in
                                                                               Monroe County, TN.
 
                   *                  *                  *                  *                  *                  *                  *
Darter, duskytail................  Etheostoma percnurum  U.S.A. (TN, VA)....  Entire, except       E                  502, 732           NA           NA
                                                                               where listed as an
                                                                               experimental
                                                                               population.

[[Page 52427]]

 
    Do...........................  ......do............  ......do...........  Tellico River, from  XN                      732           NA     17.84(m)
                                                                               the backwaters of
                                                                               the Tellico
                                                                               Reservoir (about
                                                                               Tellico River mile
                                                                               19 [30.4 km])
                                                                               upstream to
                                                                               Tellico River mile
                                                                               33 (52.8 km), in
                                                                               Monroe County, TN.
 
                   *                  *                  *                  *                  *                  *                  *
Madtom, smoky....................   Noturus baileyi....   U.S.A. (TN).......  Entire, except       E                  163, 732     17.95(e)           NA
                                                                               where listed as an
                                                                               experimental
                                                                               population.
Do...............................  ......do............  ......do...........  Tellico River, from  XN                      732           NA     17.84(m)
                                                                               the backwaters of
                                                                               the Tellico
                                                                               Reservoir (about
                                                                               Tellico River mile
                                                                               19 [30.4 km])
                                                                               upstream to
                                                                               Tellico River mile
                                                                               33 (52.8 km), in
                                                                               Monroe County, TN.
Madtom, yellowfin................  Noturus flavipinnis.  U.S.A. (TN, VA)....  Entire, except       T                  28, 317,     17.95(e)     17.44(c)
                                                                               where listed as an                          732
                                                                               experimental
                                                                               population.
Do...............................  ......do............  ......do...........  N. Fork Holston      XN                      317           NA     17.84(e)
                                                                               River Watershed,
                                                                               VA, TN; S. Fork
                                                                               Holston R., up-
                                                                               stream to Ft.
                                                                               Patrick Henry Dam,
                                                                               TN; Holston R.
                                                                               down-stream to
                                                                               John Sevier
                                                                               Detention Lake
                                                                               Dam, TN; and all
                                                                               tributaries
                                                                               thereto.
Do...............................  ......do............  ......do...........  Tellico River, from  XN                      732           NA     17.84(e)
                                                                               the backwaters of
                                                                               the Tellico
                                                                               Reservoir (about
                                                                               Tellico River mile
                                                                               19 [30.4 km])
                                                                               upstream to
                                                                               Tellico River mile
                                                                               33 (52.8 km), in
                                                                               Monroe County, TN.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Amend Sec. 17.84 by revising paragraph (e) and adding paragraph 
(m) as set forth below:


Sec. 17.84  Special rules-vertebrates.

* * * * *
    (e) Yellowfin madtom (Noturus flavipinnis).
    (1) Where is the yellowfin madtom designated as a nonessential 
experimental population (NEP)? We have designated two populations of 
this species as NEPs: the North Fork Holston River Watershed NEP and 
the Tellico River NEP.
    (i) The North Fork Holston River Watershed NEP area is within the 
species' historic range and is defined as follows: The North Fork 
Holston River watershed, Washington, Smyth, and Scott Counties, 
Virginia; South Fork Holston River watershed upstream to Ft. Patrick 
Henry Dam, Sullivan County, Tennessee; and the Holston River from the 
confluence of the North and South Forks downstream to the John Sevier 
Detention Lake Dam, Hawkins County, Tennessee. This site is totally 
isolated from existing populations of this species by large Tennessee 
River tributaries and reservoirs. As the species is not known to 
inhabit reservoirs and because individuals of the species are not 
likely

[[Page 52428]]

to move 100 river miles through these large reservoirs, the possibility 
that this population could come in contact with extant wild populations 
is unlikely.
    (ii) The Tellico River NEP area is within the species' historic 
range and is defined as follows: The Tellico River, between the 
backwaters of the Tellico Reservoir (approximately Tellico River mile 
19 (30.4 kilometers) and Tellico River mile 33 (52.8 kilometers), near 
the Tellico Ranger Station, Monroe County, Tennessee. This species is 
not currently known to exist in the Tellico River or its tributaries. 
Based on its habitat requirements, we do not expect this species to 
become established outside this NEP area. However, if individuals of 
this population move upstream or downstream or into tributaries outside 
the designated NEP area, we would presume that they came from the 
reintroduced population. We would then amend this rule and enlarge the 
boundaries of the NEP area to include the entire range of the expanded 
population.
    (2) We do not intend to change the NEP designations to ``essential 
experimental,'' ``threatened,'' or ``endangered'' within the NEP areas. 
Additionally, we will not designate critical habitat for these NEPs, as 
provided by 16 U.S.C. 1539(j)(2)(C)(ii).
    (3) What activities are not allowed in the NEP areas?
    (i) Except as expressly allowed in paragraph (e)(4) of this 
section, all the prohibitions of Sec. 17.31 (a) and (b) apply to the 
fishes identified in paragraph (e)(1) of this section.
    (ii) Any manner of take not described under paragraph (e)(4) of 
this section is prohibited in the NEP area. We may refer unauthorized 
take of these fishes to the appropriate authorities for prosecution.
    (iii) You may not possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever any of the identified fishes, 
or parts thereof, that are taken or possessed in violation of paragraph 
(e)(3) of this section or in violation of the applicable State fish and 
wildlife laws or regulations or the Act.
    (iv) You may not attempt to commit, solicit another to commit, or 
cause to be committed any offense defined in paragraph (e)(3) of this 
section.
    (4) What take is allowed in the NEP area? Take of this species that 
is incidental to an otherwise legal activity, such as recreation (e.g., 
fishing, boating, wading, trapping, or swimming), forestry, 
agriculture, and other activities that are in accordance with Federal, 
State, and local laws and regulations, is allowed.
    (5) How will the effectiveness of these reintroductions be 
monitored? We will prepare periodic progress reports and fully evaluate 
these reintroduction efforts after 5 and 10 years to determine whether 
to continue or terminate the reintroduction efforts.
* * * * *
    (m) Spotfin chub (=turquoise shiner) (Cyprinella (=Hybopsis) 
monacha), duskytail darter (Etheostoma percnurum), smoky madtom 
(Noturus baileyi).
    (1) Where are populations of these fishes designated as 
nonessential experimental populations (NEPs)?
    (i) The NEP area for these three fishes is within the species' 
probable historic ranges and is defined as follows: The Tellico River, 
between the backwaters of the Tellico Reservoir (approximately Tellico 
River mile 19 (30.4 kilometers) and Tellico River mile 33 (52.8 
kilometers), near the Tellico Ranger Station, Monroe County, Tennessee.
    (ii) None of the fishes named in paragraph (m) of this section are 
currently known to exist in the Tellico River or its tributaries. Based 
on the habitat requirements of these fishes, we do not expect them to 
become established outside the NEP area. However, if any individuals of 
any of the species move upstream or downstream or into tributaries 
outside the designated NEP area, we would presume that they came from 
the reintroduced populations. We would then amend paragraph (m)(1)(i) 
of this section and enlarge the boundaries of the NEP area to include 
the entire range of the expanded population.
    (iii) We do not intend to change the NEP designations to 
``essential experimental,'' ``threatened,'' or ``endangered'' within 
the NEP area. Additionally, we will not designate critical habitat for 
these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).
    (2) What activities are not allowed in the NEP area?
    (i) Except as expressly allowed in paragraph (m)(3) of this 
section, all the prohibitions of Sec. 17.31 (a) and (b) apply to the 
fishes identified in paragraph (m)(1) of this section.
    (ii) Any manner of take not described under paragraph (m)(3) of 
this section is prohibited in the NEP area. We may refer unauthorized 
take of these species to the appropriate authorities for prosecution.
    (iii) You may not possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever any of the identified fishes, 
or parts thereof, that are taken or possessed in violation of paragraph 
(m)(2) of this section or in violation of the applicable State fish and 
wildlife laws or regulations or the Act.
    (iv) You may not attempt to commit, solicit another to commit, or 
cause to be committed any offense defined in paragraph (m)(2) of this 
section.
    (3) What take is allowed in the NEP area? Take of this species that 
is incidental to an otherwise legal activity, such as recreation (e.g., 
fishing, boating, wading, trapping, or swimming), forestry, 
agriculture, and other activities that are in accordance with Federal, 
State, and local laws and regulations, is allowed.
    (4) How will the effectiveness of these reintroductions be 
monitored? We will prepare periodic progress reports and fully evaluate 
these reintroduction efforts after 5 and 10 years to determine whether 
to continue or terminate the reintroduction efforts.

    Dated: July 23, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-20341 Filed 8-9-02; 8:45 am]
BILLING CODE 4310-55-P